Carpenter, J.
This action as originally brought was to set aside a deed for fraud and undue influence. The defendants in their answer set up another and prior deed, and the plaintiff, in an amended complaint, asks—1st, to have the prior deed reformed so as to express an alleged trust, and 2d, that the trust be enforced.
On the trial the plaintiff offered to prove the supposed trust by parol, and by the testimony of the attorney who drew the deed. An objection to this testimony was sustained by the court, and, judgment having been rendered [588]*588for the defendants, the plaintiff appealed. The objection to the evidence is two-fold—1st, that the offer called for privileged communications ; 2d, that parol evidence is inadmissible to prove an express trust. The court below excluded the evidence on the first ground.
Instructions by a grantor to an attorney drawing a deed are not ordinarily privileged communications. Hatton v. Robinson, 14 Pick., 416 ; Hebbard v. Haughian, 70 N. York, 54. The tenth paragraph of the complaint alleges an agreement between the grantors and the grantee that the grantee should hold one half of the property conveyed in trust for the plaintiff. Now if the grantors pursuant to such an agreement had instructed the attorney to prepare a deed expressing therein such a trust, we do not see why it would not be competent for the attorney to testify that such were his instructions. But the difficulty is that the “record does not show the precise nature of the communications from the grantors which the plaintiff expected to prove. It appears that he offered to prove by the declaration of one of the grantors made at the time the deed was executed, “ that the purpose of the deed was that Mrs. Munson could hold the property, and, subsequent to the death of Mr. and Mrs. Todd, sell or divide the property and give half to the plaintiff.” Now it may be that that purpose was the result of his consultation with his attorney—that it was what his attorney advised or directed ; and, on the other hand, it may be that the declaration, whatever it was, was intended as an instruction to the attorney to prepare a deed expressing therein such a trust as the purpose contemplated. This latter supposition however seems to be excluded by the pleadings ; for it is not alleged that the deed was not written according to the instructions; it is not alleged even that the deed is not just as the grantors intended it should be. We are thrown back then upon an express parol trust as the object of the proof to be gathered from the declarations. As it is possible that such a trust can only be shown by bringing before the court the private conferences between the client and his attorney, it is not clear that the court [589]*589erred in excluding the evidence on that ground. But we think the evidence was inadmissible for the reason that an express trust in real estate cannot be proved by parol. It was so decided in Dean v. Dean, 6 Conn., 285, and that was recognized as law in Vail’s Appeal from Probate, 37 id., 198. We are aware of no case in which a contrary doctrine has been held. The plaintiff’s counsel cite several cases which seem to be inconsistent with this principle, but the conflict is in appearance only and is not real. Property held in trust, like other property, may be the subject of contracts, of mistakes, and of fraud. In suits to enforce contracts, correct mistakes, and punish or prevent fraud, it is often necessary to show incidentally an express trust by parol. In considering this subject the distinction between such cases and cases brought simply to establish or enforce a trust, must be borne in mind : and this distinction will reconcile the cases. We will briefly notice some of the more prominent cases referred to.
Crocker v. Higgins, 7 Conn., 342. A conveyed laud to B, B paying therefor about one half the value of the land in money, and agreeing to give C a life lease of the premises. The court enforced the agreement to give a lease. Performance by A took the case out of the statute of frauds.
Collins v. Tillou, 26 Conn., 368. A constituted B his agent to sell real estate and account to him for the proceeds. The land was conveyed to B for that purpose by an absolute deed. In a suit against B for not accounting, it was held that the purpose for which the deed was given, and the consideration, might be shown by parol. The fact that he held the real estate in trust did not prevent A from proving B’s contract to account for the proceeds of the sale. Moreover the trust in that case may be regarded as an implied one, being a contingent resulting trust arising from the want of a consideration.
Booth’s Appeal from Probate, 35 Conn., 168. Several brothers and sisters purchased land under an agreement that one of their number should take the title and hold it in trust for the mother during her life and after her death [590]*590for themselves. The property came into the hands of a sister, who received it with knpwledge of .the trust, and she sold it to a stranger. After the death of the mother she was held liable to the brothers and sisters for the money received for the land. Two things are noticeable; first, that the trust for themselves after the death of the mother was a resulting trust, implied from their payment of the consideration, as well as an express one; second, that there was a contract obligation on the part of the first trustee, which, by the scienter, bound the second. To allow her to repudiate the trust would operate as a fraud upon the others.
Peck v. Hoyt, 39 Conn., 9. A widow deeded land to a person not a relative, upon no other consideration than that she supposed he would be to her a son, and care for and support her as his mother during life. This he refused to do. On a bill to set aside the deed it was held that the circumstances were equivalent to a contract by the grantee to do what the grantor supposed would be done, and the deed was set aside. In that case too, the consideration failing, it may properly be regarded as the case of an implied trust rather than an express one.
Dowd v. Tucker, 41 Conn., 197. A testatrix being about to make a codicil to her will in favor of another, the beneficiary under the will promised, if the will were allowed to stand, that he would carry out her intentions. On a bill in equity it was held that he held the property in trust for the proposed devisee. But the trust was not express, it was implied. The promise was not to hold the property in trust, but to convey it. Until he did so the law raised the trust. Again, unless he did convey his promise was a fraud upon the proposed devisee, and on that ground the decision rests.
The plaintiff, for the purpose of proving the alleged trust, offered in evidence the declaration of Mrs. Ambrose Todd to himself, and the declaration of Ambrose Todd to the wife of the plaintiff, both declarations having been made some time after the deed was given. This evidence was objected to and excluded. It is difficult to see how these [591]*591declarations could even tend to prove the agreement to hold in trust alleged to have been made at or before the time the deed was given. In addition to the objection that it is an attempt to prove an express trust by parol, it is open to the further objection that it is an attempt to prove it by the mere declarations of the grantors long after they had parted with all interest in the property.
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Carpenter, J.
This action as originally brought was to set aside a deed for fraud and undue influence. The defendants in their answer set up another and prior deed, and the plaintiff, in an amended complaint, asks—1st, to have the prior deed reformed so as to express an alleged trust, and 2d, that the trust be enforced.
On the trial the plaintiff offered to prove the supposed trust by parol, and by the testimony of the attorney who drew the deed. An objection to this testimony was sustained by the court, and, judgment having been rendered [588]*588for the defendants, the plaintiff appealed. The objection to the evidence is two-fold—1st, that the offer called for privileged communications ; 2d, that parol evidence is inadmissible to prove an express trust. The court below excluded the evidence on the first ground.
Instructions by a grantor to an attorney drawing a deed are not ordinarily privileged communications. Hatton v. Robinson, 14 Pick., 416 ; Hebbard v. Haughian, 70 N. York, 54. The tenth paragraph of the complaint alleges an agreement between the grantors and the grantee that the grantee should hold one half of the property conveyed in trust for the plaintiff. Now if the grantors pursuant to such an agreement had instructed the attorney to prepare a deed expressing therein such a trust, we do not see why it would not be competent for the attorney to testify that such were his instructions. But the difficulty is that the “record does not show the precise nature of the communications from the grantors which the plaintiff expected to prove. It appears that he offered to prove by the declaration of one of the grantors made at the time the deed was executed, “ that the purpose of the deed was that Mrs. Munson could hold the property, and, subsequent to the death of Mr. and Mrs. Todd, sell or divide the property and give half to the plaintiff.” Now it may be that that purpose was the result of his consultation with his attorney—that it was what his attorney advised or directed ; and, on the other hand, it may be that the declaration, whatever it was, was intended as an instruction to the attorney to prepare a deed expressing therein such a trust as the purpose contemplated. This latter supposition however seems to be excluded by the pleadings ; for it is not alleged that the deed was not written according to the instructions; it is not alleged even that the deed is not just as the grantors intended it should be. We are thrown back then upon an express parol trust as the object of the proof to be gathered from the declarations. As it is possible that such a trust can only be shown by bringing before the court the private conferences between the client and his attorney, it is not clear that the court [589]*589erred in excluding the evidence on that ground. But we think the evidence was inadmissible for the reason that an express trust in real estate cannot be proved by parol. It was so decided in Dean v. Dean, 6 Conn., 285, and that was recognized as law in Vail’s Appeal from Probate, 37 id., 198. We are aware of no case in which a contrary doctrine has been held. The plaintiff’s counsel cite several cases which seem to be inconsistent with this principle, but the conflict is in appearance only and is not real. Property held in trust, like other property, may be the subject of contracts, of mistakes, and of fraud. In suits to enforce contracts, correct mistakes, and punish or prevent fraud, it is often necessary to show incidentally an express trust by parol. In considering this subject the distinction between such cases and cases brought simply to establish or enforce a trust, must be borne in mind : and this distinction will reconcile the cases. We will briefly notice some of the more prominent cases referred to.
Crocker v. Higgins, 7 Conn., 342. A conveyed laud to B, B paying therefor about one half the value of the land in money, and agreeing to give C a life lease of the premises. The court enforced the agreement to give a lease. Performance by A took the case out of the statute of frauds.
Collins v. Tillou, 26 Conn., 368. A constituted B his agent to sell real estate and account to him for the proceeds. The land was conveyed to B for that purpose by an absolute deed. In a suit against B for not accounting, it was held that the purpose for which the deed was given, and the consideration, might be shown by parol. The fact that he held the real estate in trust did not prevent A from proving B’s contract to account for the proceeds of the sale. Moreover the trust in that case may be regarded as an implied one, being a contingent resulting trust arising from the want of a consideration.
Booth’s Appeal from Probate, 35 Conn., 168. Several brothers and sisters purchased land under an agreement that one of their number should take the title and hold it in trust for the mother during her life and after her death [590]*590for themselves. The property came into the hands of a sister, who received it with knpwledge of .the trust, and she sold it to a stranger. After the death of the mother she was held liable to the brothers and sisters for the money received for the land. Two things are noticeable; first, that the trust for themselves after the death of the mother was a resulting trust, implied from their payment of the consideration, as well as an express one; second, that there was a contract obligation on the part of the first trustee, which, by the scienter, bound the second. To allow her to repudiate the trust would operate as a fraud upon the others.
Peck v. Hoyt, 39 Conn., 9. A widow deeded land to a person not a relative, upon no other consideration than that she supposed he would be to her a son, and care for and support her as his mother during life. This he refused to do. On a bill to set aside the deed it was held that the circumstances were equivalent to a contract by the grantee to do what the grantor supposed would be done, and the deed was set aside. In that case too, the consideration failing, it may properly be regarded as the case of an implied trust rather than an express one.
Dowd v. Tucker, 41 Conn., 197. A testatrix being about to make a codicil to her will in favor of another, the beneficiary under the will promised, if the will were allowed to stand, that he would carry out her intentions. On a bill in equity it was held that he held the property in trust for the proposed devisee. But the trust was not express, it was implied. The promise was not to hold the property in trust, but to convey it. Until he did so the law raised the trust. Again, unless he did convey his promise was a fraud upon the proposed devisee, and on that ground the decision rests.
The plaintiff, for the purpose of proving the alleged trust, offered in evidence the declaration of Mrs. Ambrose Todd to himself, and the declaration of Ambrose Todd to the wife of the plaintiff, both declarations having been made some time after the deed was given. This evidence was objected to and excluded. It is difficult to see how these [591]*591declarations could even tend to prove the agreement to hold in trust alleged to have been made at or before the time the deed was given. In addition to the objection that it is an attempt to prove an express trust by parol, it is open to the further objection that it is an attempt to prove it by the mere declarations of the grantors long after they had parted with all interest in the property.
It has been suggested that, the deed being without consideration, the purpose of the grantors in giving the deed, as soon as known to the grantee, at any time, became binding upon her. The suggestion is sufficiently answered by saying that it does not appear that any such question was made in the court below, and the reasons of appeal present no such question.
The plaintiff makes another question in reply to the objections to the evidence, and that is, that the complaint having alleged that the trust was by parol, and the defendants not having demurred, the objection is waived and was not properly taken on the trial. In support of this proposition he cites Powers v. Mulvey, 51 Conn., 432, Merwin v. Richardson, 52 id., 224, and Trowbridge v. True, 52 id., 190. The leading case and the one principally relied on is Powers v. Mulvey. That case seems to have been understood as going further than the court intended to go. The point decided was that, a sufficient defense having been found true, judgment should have been rendered for the defendant. It does.not follow that a complaint or defense, found true on a traverse, and which is manifestly insufficient in substance, entitles the party to a judgment. The reasoning of the court must be understood with reference to the facts of the case and must not be applied to facts materially different, especially if such an application will lead to absurd consequences. But, without noticing that case further, we think the complaint in this case is not demurrable. It alleges an agreement by the grantee to own one half of the premises in trust for the plaintiff, and, after the death of the grantors, to sell the same and give one half the avails thereof to the plaintiff. It presents the ordinary case of [592]*592one party having received the benefits of a contract refusing to perform it on his part. The fact that the agreement incidentally involved a trust will not prevent the plaintiff from proving the contract. Crocker v. Higgins, 7 Conn., 342, is a direct authority for holding such a complaint good.
The difficulty with the plaintiff’s case is that he does not attempt to prove the case he has alleged.. The testimony offered totally fails to establish any contract. It is a bold attempt to prove a trust by the mere naked declarations of the grantors, made in the absence of the grantee at the time, and after the deed was given. We think that cannot be done. '
There is no error in the judgment appealed from.
In this opinion the other judges concurred; except Park, C. J., who dissented.