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Formalities for Trusts of Land, and the Doctrine in Rochefoucauld v. Boustead

Published online by Cambridge University Press:  16 January 2009

T. G. Youdan
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In 1677 the Statute of Frauds1 introduced2 formalities for the creation of trusts of land. Section 7 required that,

… all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law entitled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.

This requirement (or something like it) has been adopted in most common law jurisdictions and remains applicable today in England in the form of section 53(1) of the Law of Property Act 1925. Despite the provision's apparently comprehensive and drastic effect, judicial decisions have reduced its impact. Of most importance is the doctrine which I shall name after the case, Rochefoucauld v. Boustead, in which it was authoritatively described by Lindley L.J. He said this:

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The Cambridge Law Journal , Volume 43 , Issue 2 , November 1984 , pp. 306 - 336
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Copyright © Cambridge Law Journal and Contributors 1984

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References

1 29 Car. 2, c.3.

2 It seems that previously no formalities were required for the creation of any trusts. But see Bacon's Reading on Uses (quoted in Kerly, D. M., Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (1890) at 130)Google Scholar for a statement that a parol voluntary use that was within the Statute of Uses would not be enforced. This point (although no reference is made to Bacon) is discussed in Scott, W. A.. Trusts, 3rd ed. (1967) at 308.Google Scholar

3 This provides: “A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.” Despite the replacement of s.7 of the Statute of Frauds and other relevant sections of that Act by s.53 of the Law of Property Act 1925, I shall in this article refer in the text to the original provisions of the Statute of Frauds. This is because the modern English provisions do not, I think, make substantial changes relevant to this article (and I shall refer in footnotes to any possible substantial changes) and most of the case law deals with the original provisions. In addition, the original provision is still in force in some jurisdictions and where it is not the current provision is generally an adaptation of it.

4 [1897] 1 Ch. 196 (C.A.). There are also other doctrines by which the effect of the statutory provision may be avoided. See Ford, H. A. J. and Lee, W. A., Principles of the Law of Trusts (1983) at 200.Google Scholar

5 Ibid, at 206.

6 H. Picarda, The Law and Practice Relating to Charities (1977) at 131–132 provides the best English treatment of this point. It is discussed by Scott, supra n.2 at 315–324.Google Scholar

7 See Hening, “The Original Drafts of the Statute of Frauds (29 Car. II c.3) and their Authors” (1913) 61 U. of Pa.L.Rev. 283. See also Costigan, “The Date and Authorship of the Statute of Frauds” (1912) 26 Harv.L.Rev. 329; Holdsworth, W. S., History of English Law, Vol. 6 at 379–384, Appendix I. See also Hamburger, “The Conveyancing Purposes of the Statute of Frauds (1983) 27 Am.J. of Leg. History 354.Google Scholar

8 For assertions that the 17th century was a particularly litigious age see Veall, D., The Popular Movement for Law Reform (1970) at 30Google Scholar; Simpson, A. W. B., History of the Common Law of Contract (1975) at 599. A contemporary described the occurrence of fraud as ”epidemical” at the time of the Restoration: See Hamburger, supra n.7 at 364, n.47.Google Scholar

9 This point is made by Lord Wright, Legal Essays and Addresses (1939) at 225; Stollery, “Statute of Frauds” (1976) 14 Alta.L.Rev. 222 at 223; Manitoba Law Reform Commission, Report on the Statute of Frauds (1980) at 1.Google Scholar

10 Redwood, J. A., Reason, Ridicule and Religion (1976) at 12.Google Scholar

11 See, e.g., Aylmer, G. E., “Unbelief in Seventeenth Century England” in Pennington, D. and Thomas, K. (eds.), Puritans and Revolutionaries (1978) at 41–46Google Scholar; Hunter, M., Science and Society in Restoration England (1981) at 162–170Google Scholar 12 See Shapiro, , “Law Reform in Seventeenth Century England” (1975) 19 Am.Jo.Leg.His. 280 at 308 n.128. Hale was also critical of Slade's Case as causing an increase in perjury, and he was influential in the passing of the Statute of Frauds. See n.30 infra.Google Scholar

13 Holdsworth's treatment of this point has been influential: supra n.7 at 388–389. See also Baker, J. H., An Introduction to English Legal History, 2nd ed. (1979) at 286–290; Simpson, supra n.8 at 604; Teevan, “Seventeenth Century Evidentiary Concerns and the Statute of Frauds” (1983) 9 Adelaide L.Rev. 252.Google Scholar

14 Holdsworth, supra n.7 at 388.

15 Ibid, at 393.

16 See Daniell, E. R., Chancery Practice (1840) Vol. 2, at 397–404.Google Scholar

17 Ibid, at 449–551.

18 “Changes in Equity, Procedure and Principles” in A Century of Law Reform (1902) at 187.Google Scholar

19 “Changes in Equity, Procedure and Principles” in A Century of Law Reform (1902) at 187.Google Scholar

20 “Changes in Equity, Procedure and Principles” in A Century of Law Reform (1902) at 187.Google Scholar

21 “Changes in Equity, Procedure and Principles” in A Century of Law Reform (1902) at 187.Google Scholar

22 For discussions of the Chancery procedure in dealing with oral evidence see Birrell, supra n.18 at 188 et seq.; Daniell, , supra n. 16 at 631Google Scholar; Dawson, J., A History of Lay Judges (1960) at 145Google Scholar; Holdsworth, W. S., History of English Law, Vol. 9 at 353et seq.Google Scholar; Jones, W. J., The Elizabethan Court of Chancery (1967) at 12–15, 236–263Google Scholar; Odgers, W. B., “Changes in Procedure and in the Law of Evidence” in A Century of Law Reform (1902) at 208–209, 222Google Scholar; Veall, supra n.8 at 32–34; D. E. C. Yale, Lord Nottingham's Two Treatises (1965) at 58 et seq. The procedure was already established by t he time of the passing of the Statute of Frauds: see Dawson, ibid.; Jones, ibid.; Spence, G., The Equitable Jurisdiction of the Court of Chancery (1846) Vol. 1 at 402–403.Google Scholar

23 Supra n.22 at 353.

24 For discussions of the feigned issue procedure see: Daniell, , supra n.16 at 631, 727–762Google Scholar; Holdsworth, , supra n.22 at 357; Odgers, supra n.22 at 225; Yale, supra n.22 at 61; Chesnin and Hazard, “Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791 (1974) 83 Yale L.J. 999 at 1005–1010. This article is flawed for the reasons argued by Langbein in “Fact Finding in the English Court of Chancery: A Rebuttal” (1974) 83 Yale L.J. 1620. But it does contain a useful outline of the feigned issue procedure at the pages cited here.Google Scholar

25 Both these manuals were edited by Yale, D. E. C. and published under the title Lord Nottingham's Two Treatises (1965). For discussion of the dating and purpose of the manuals see Yale's Introduction at 6, 76.Google Scholar

26 For discussion of the idea that two witnesses were needed for good proof see infra p. 332.

27 Yale, supra n.22 at 217.

28 Ibid, at 220.

29 See Hening, supra n.7. For discussion of precursors of the Statute of Frauds and Hale's involvement in the process of reform see Hamburger, supra n.7.

30 Another relevant development was the establishment of assumpsit as an alternative to debt at the beginning of the 17th century. This had given rise to concern about contractual transactions particularly since it led to jury trial becoming the normal method of deciding disputes of fact arising from these transactions. There was probably a connection between this and the contract formality provisions of the Statute of Frauds. See, e.g., Baker, supra n.13 at 282–290; Simpson, supra n.8, passim but particularly at 602–605; Teevan, supra n.13. It is interesting that Hale, who was influential in the passing of the Statute of Frauds, was both critical of Slade's Case as causing an increase in perjury (see Baker, ibid, at 289) and was concerned about the need for conveyancing reform: See Hamburger, supra n.7.

31 See Hamburger, supra n.7.

32 27 Hen. VIII, c.10.

33 27 Hen. VIII, c.16.

34 32 Hen. VIII, c. l. This was soon modified by the Statute of Wills of 1543, 34 and 35 Hen. VIII, c.5.

35 See, e.g., Baker, , supra n.13 at 257–258.Google Scholar

36 See Baker, , “The Use Upon a Use in Equity 1558–1625” (1977) 93 L.Q.R. 33Google Scholar; Barton, “The Statute of Uses and the Trust of Freeholds” (1966) 82 L.Q.R. 215; Milsom, , Historical Foundations of the Common Law, 2nd ed. (1981) at 236–239Google Scholar; Yale, , “The Revival of Equitable Estates in the Seventeenth Century” [1957] C.L.J. 72.Google Scholar

37 Supra n.7.

38 Yale, supra n.22 at 248. There is a close connection beween Lord Nottingham's criticisms and the criticism of uses in the preamble to the Statute of Uses: See Yale, ibid, at 248, n. l.

39 See Yale, D. E. C., Lord Nottingham's Chancery Cases, Vol. 11 (Selden Society, Vol. 73) at 89–99.Google Scholar

40 See Hening, supra n.7 at 287.

41 Ibid, at 286.

42 See Perillo, , “The Statute of Frauds in the Light of the Functions and Dysfunctions of Form” (1974) 43 Fordham L.Rev. 39 at 40–41Google Scholar; Rabel, , “The Statute of Frauds and Comparative Legal History” (1947) 63 L.O.R. 174.Google Scholar

43 Supra n.7 at 389–390. See also Simpson, supra n.8 at 605–681.

44 See Fuller, , “Consideration and Form” (1941) 41 Colum.L.Rev. 799, 800ff.Google Scholar; Gulliver, and Tilson, , “Classification of Gratuitous Transfers” (1941) 51 Yale L.J. 1; Langbein, “Substantial Compliance with the Wills Act” (1975) 88 Harv.L.Rev. 489 at 491–498; Perillo, supra n.42.Google Scholar

45 Both those terms were coined by Fuller, supra n.44 at 800 and 801 respectively.

46 Langbein, supra n.44 at 495.

47 Ibid., quoting Gulliver and Tilson, supra n.44 at 5.

48 This phrase is taken from Gulliver and Tilson, supra n.44 at 6.

49 Langbein, supra n.44 at 498–499.

50 See. e.g., the following cases for statements along those lines: Reech v. Kennigate (1748) Amb. 67Google Scholar; Stickland v. Aldridge (1804) 9 Ves.Jun. 516Google Scholar; Mestaer v. Gillespie (1805) 11 Ves.Jun. 622 a t 627–628Google Scholar; Lincoln v. Wright (1859) 4 De G. & J. 16 at 22Google Scholar; Booth v. Turle (1873) L.R. 16 Eq. 182 at 187Google Scholar; Re Duke of Marlborough [1894] 2 Ch. 133 at 141Google Scholar; Cadd v. Cadd (1909) 9 C.L.R. 171 a t 187Google Scholar; Morris v. Whiting (1913) 15 D.L.R. 245 at 257 (Man.K.B.)Google Scholar; Scheuerman v. Scheuerman (1915) 52 S.C.R. 625 at 639 (per Anglin J., dissenting)Google Scholar; Organ v. Sandwell [1921] V.L.R. 622 (Sup.Ct.)Google Scholar; Owchar v. Owchar [1949] 2 D.L.R. 432 at 438 (Sask.C.A.)Google Scholar; Auger v. Auger (1965) 50 D.L.R. (2d) 670 at 672 (Sask.C.A.)Google Scholar; Last v. Rosenfeld [1972] 2 N.S.W.L.R. 923 at 927 (Sup.Ct. in Eq.)Google Scholar; Block v. Bloch (1981) 55 A.L.J.R. 701 at 706 (H.C. of Aus.)Google Scholar; Lyus v. Prowsa Developments Ltd. [1982] 2 All E. R. 953 at 962 (Ch.D.).Google Scholar The term “instrument of fraud” appears to have been coined by Eldon, Lord in Mestaer v. Gillespie (supra): see Sheridan, L. A., Fraud in Equity (1957) at 146.Google Scholar

51 s.4 of the Statute of Frauds explicitly provides that the memorandum may be signed by the defendant or his agent. Because s.7 contains no explicit reference to an agent it is generally considered (see e.g., Lewin, T., Trusts, 16th ed. (1964) at 25) that a writing signed by an agent does not satisfy the section. It is arguable, however, that an agent of the party “who is by law enabled to declare such trust” is himself a “party who is by law enabled to declare such trust.” This argument can also be made with more force in t h e context of the modern English provision, s.53(l)(b) of the Law of Property Act 1925, which states that the writing must be signed “by some person who is able to declare such trust or by his will.” (My emphasis.)Google Scholar

52 See, e.g., Underhill, A., Law of Trusts and Trustees, 13th ed. (1979) at 169.Google Scholar

53 (1854) 19 Beav. 330.

54 (1877) 7 Ch.D. 60.

55 The reasoning of Romilly M.R. is open to argument on two points not relevant to the point under consideration: first, whether the transaction was testamentary; secondly, whether the transaction was an assignment of an equitable interest rather than a declaration of trust.

56 See Ford and Lee, supra n.4 at 199; Scott, supra n.2 at 317–318.

57 Scott, supra n.2 at 318.

58 See infra pp. 320–322.

59 Scott, supra n.2 at 315.

60 See infra pp. 334–336.

61 See Oakley, A. J., Constructive Trusts (1978) Chap. 6Google Scholar; Waters, D. W. M., Constructive Trusts (1964) Chap. 2.Google Scholar

62 In the circumstances described in the text at n.59.

63 In Ambrose v. Ambrose (1716) 1 P. Wms. 321 it was held that a written declaration by the trustee satisfied the Statute but it also seems to have been considered that this transaction did not give rise to a resulting trust. The report states (at 323) “But decreed by the Lord Chancellor [Cooper] that the strength of this evidence was, that this purchase made in the life of A in the names of Edward Ambrose and his clerk, was in trust for A. However, it plainly appearing, upon the evidence on both sides, that the consideration-money of this purchase was the proper money of A, had it not been for the Statute of Frauds, this would have been a resulting trust; and the said Edward Ambrose, after the death of A, executing the declaration of trust, this plainly took it out of the statute.”

64 See, e.g., Hanbury, H. G. and Maudsley, R. M., Modern Equity, 11th ed. (1981) at 318–319Google Scholar; cf. Pettit, P. H., Equity and the Law of Trusts, 4th ed. (1979) at 109.Google Scholar

65 See t he discussion by Yale, supra n.39 at 110–111. It seems to b e accepted that a voluntary conveyance of land never gave rise to a presumption of resulting trust in America: See Costigan, , “Trusts Based on Oral Promises to hold in Trust, to Convey, or to Devise, made by Voluntary Grantees” (1914) 12 Mich.L.Rev. 423 at 516Google Scholar; Scott, , Trusts, 3rd ed. (1967), Vol. 1 at 325–326Google Scholar; Stone, , “Resulting Trusts and the Statute of Frauds” (1906) 6 Col.L.Rev. 326 at 331.Google Scholar

66 (1857) 1 De G. and J. 482. In addition to the cases referred to in the text, there is a group of cases which implicitly supports the suggested principles. These are cases where it was held or assumed that a voluntary conveyance of land by A to B did not give rise to a presumption of resulting trust but the evidence established an oral trust for A which was not evidenced by writing. B was not entitled to rely on the lack of writing to defeat the trust. The point for my present purpose is that it was assumed that A could not after the conveyance make the required signed writing. See Hutchins v. Lee (1737) 1 Atk. 447; Young v. Peachy (1741) 2 Atk. 255; Re Duke of Marlborough, supra n.50; Breitenstein v. Munson (1913) 19 B.C.R. 495; Re Lang Estate [1919] 1 W.W.R. 651 (Sask.K.B.).Google Scholar

67 (1857) 1 De G. and J. 482. In addition to the cases referred to in the text, there is a group of cases which implicitly supports the suggested principles. These are cases where it was held or assumed that a voluntary conveyance of land by A to B did not give rise to a presumption of resulting trust but the evidence established an oral trust for A which was not evidenced by writing. B was not entitled to rely on the lack of writing to defeat the trust. The point for my present purpose is that it was assumed that A could not after the conveyance make the required signed writing. See Hutchins v. Lee (1737) 1 Atk. 447; Young v. Peachy (1741) 2 Atk. 255; Re Duke of Marlborough, supra n.50; Breitenstein v. Munson (1913) 19 B.C.R. 495; Re Lang Estate [1919] 1 W.W.R. 651 (Sask.K.B.).Google Scholar

68 (1861) 3 De G.F. & J. 139.

69 (1828) 5 Russ. 258, A transferred a lease to B on trust for C. B, after the transfer, made a deed setting out the trust. It was assumed that the writing made by B satisfied the section; The only question was whether it mattered that it was only made by B after he had gone bankrupt.

70 Harper v. Paterson (1864) 14 U.C.C.P. 538 (Upper Can.); Mountain v. Styak [1922] N.Z.L.R. 131 (C.A.).Google Scholar

71 Supra n.4.

72 My emphasis.

73 Supra n.4 at 205–206.

74 Other changes were that the provision requiring formality for the declaration or creation of trusts (s.7) was separated from the provision requiring formality for assignment of beneficial interests (s.9). The former was made to apply only to land; the latter applied to interests under all trusts and it was required that the assignments be in writing.

75 In addition, s.9 provided that “all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise.” (My emphasis.)

76 Forster v. Hale (1798) 3 Ves.Jun. 696 at 707; Harper v. Paterson, supra n.70 at 545; Wilde v. Wilde (1873) 20 Gr. 521 at 531–532 (Ont. Ct. of Ch.); Rochefoucauld v. Boustead, supra n.4 at 206. See also Owchar v. Owchar, supra n.50. But see n. 75 supra and the doubts expressed in some editions of Lewin on Trusts: e.g., 12th ed. (1933) at 57–58.Google Scholar

77 Gardner v. Rowe (1828) 5 Russ. 258; Rochefoucauld v. Boustead, supra n.4 at 207; contra: Drummond v. Drummond (1964) 50 W.W.R. 538 at 544 (B.C.S.C). Cases dealing with mortmain legislation also support this view that section 7 only affected the enforceability, and not invalidity, of trustsGoogle Scholar: see Jones, G. H., History of the Law of Charity, 1532–1827 (1969) and the cases there cited. In Rochefoucauld v. Boustead Lindley L.J. referred on this point to Leroux v. Brown (1852) 12 C.B. 801. That case deals with s.4 of the Statute of Frauds but s.4 does not provide a particularly apt analogy since it uses quite different language: “… no action shall be brought …”Google Scholar The modern English provision, s.53(l)(b) of the Law of Property Act 1925 (see n.3, supra) does not contain any provision that non-compliance will make the trust “utterly void and of no effect.” Indeed, it does not express any sanction for non-compliance and, consequently, it can be taken to have confirmed the interpretation of s.7 by the cases.

78 See Scott, supra n.2 at 364–365.

79 Supra n.77. See Scott, supra n.2 at 321–322.

80 Supra n.7 at 393.

81 Supra pp. 309.

82 Langbein, supra n.24 at 1630, makes the following statement in the context of the feigned issue procedure: “The worst feature of civil jury procedure, the testimonial disqualification of parties for interest, the Chancellor could order dispensed.” He refers only to a single dictum. It seems that generally the testimonial disqualification of parties was not in fact dispensed with, although there were exceptional cases where it was. It seems to b e unclear in what circumstances the Chancery considered parties should be directed to be examined. See Daniell, , supra n.16 at 406, 739–740 and the cases there cited.Google Scholar

83 See Daniell, , supra n.16 at 404–407.Google Scholar

84 Ibid., at 748.

85 Where the issue related to title to land the Court of Chancery would in some cases obtain at least two jury verdicts as a matter of course. See Daniell, , supra n.16 at 753.Google Scholar

86 This point would apply with particular force in a case where a defendant admitted the trust, or the issue was whether he could be compelled to give discovery as to whether there was a trust. For example, in the following testamentary secret trust cases at issue was the discovery point: Thynn v. Thynn (1684) 1 Vern. 296Google Scholar; Stickland v. Aldridge (1804) 9 Ves. 516. In Pring v. Pring (1689) 2 Vern. 99 (also a testamentary secret trust case) two of three alleged secret trustees confessed the trust. For discussion and criticism of the rule that generally the Statute of Frauds may be used as a defence even where the transaction in question is admitted see Stevens, “Ethics and the Statute of Frauds” (1952) 37 Cornell L.Q. 355.Google Scholar See also Daniell, , Chancery Practice, 8th ed. (1914) at 413–414.Google Scholar

87 19th-century procedural reforms may also be relevant to the development of the Rochefoucauld doctrine. By about the middle of the century a series of statutes had enabled interested persons, the parties to litigation and their spouses to give testimony; the procedure of the Court of Chancery for dealing with disputed facts was greatly improved; and the Court of Chancery was directed by statute not to refer issues of fact to common law courts, except in special cases. (See, e.g., Birrell, , supra n.18; W. S. Holdsworth, History of English Law, Vol. 15, at 123–124; Kerly. supra n.2 at 281–288.) It might, consequently, be expected that these reforms would have contributed to the willingness of the courts to relax the requirements of the Statute. The cases do provide some support for this idea since it is only in the second half of the 19th century that the doctrine is clearly established as creating a general modification of the effect of the Statute. The earlier cases dealing with inter vivos transactions (a general doctrine of testamentary secret trusts could be said to be established by the end of the 18th century) could be narrowly treated as they were in a series of Ontario casesGoogle Scholar: see Labatl, . Annotation (1916) 29 D.L.R. 125 at 155–164 and see, e.g., Matthews v. Holmes (1853) 5 Gr. 1 at 83–84 (C.A.); Langstaffv. Playter (1860) 8 Gr. 39. There were also English cases rejecting a wide doctrine of the sort accepted in Rochefoucauld v. Boustead: see Leman v. Whitley (1828) 4 Russ. 423; Bartlett v. Pickersgill (1760) 4 East 577n. In 1891 Kekewich J. in James v. Smith [1891] 1 Ch. 384 followed Bartlett v. Pickersgill despite the disapproval of it in Heard v. Dilley (1869) L.R. 4 Ch. 548. James v. Smith is, however, contrary to the trend of the authorities. The cases that can be said to establish the Rochefoucauld doctrine are: Lincoln v. Wright (1859) supra n.50; Davies v. Otty (No. 2) (1865) 35 Beav. 208; Haigh v. Kaye (1872) L.R. 7 Ch.App. 469; Booth v. Turle (1873). supra n.50; Re Duke of Marlborough (1894), supra n.50; and, of course, Rochefoucauld v. Boustead (1897) supra n.4. This point should not, however, be pushed too far. The fact is that the approach of the Court of Chancery to the Statute of Frauds was different from that of common law courts, and from the beginning the Court of Chancery did not give literal effect to provisions of the Statute of Frauds (see, e.g. Thynn v. Thynn and Pring v. Pring, supra n. 86; Devenish v. Baines (1689) Prec.Ch.3; Sellack v. Harris (1708) 2 Eq.Ca.Ab. 46; Maxwell's Case (1719) 1 Eq.Ca.Ab. 20; Hutchins v. Leei (1739) 1 Atk. 447; Young v. Peachy (1741) 2 Atk. 255; Drakeford v. Wilks (1747) 3 Atk. 539; Reech v. Kennigate, supra n.50; England v. Codrington (1758) 1 Eden 169; Stickland v. Aldridge, supra n.50; Mestaer v. Gillespie, supra n.50.Google Scholar

88 See Simpson, supra n.8 at 615–616.

89 See Sheridan, supra n.50 at 156–159. See also Peterkin, Rose v. (1887) 13 S.C.R. 677. It has also been similarly held that the Land Registration Act 1925 should not be allowed to be used as an instrument of fraud: Lyus v. Prowsa Developments Ltd., supra n.50.Google Scholar

90 See Brunyate, J. W., Limitation of Actions in Equity (1932) at 23–37.Google Scholar

91 See Sheridan, supra n.50.

92 See, e.g., Kerly, supra n.2 at 144–145.

93 See, e.g. Baker, J. H., The Reports of Sir John Spelman, Vol. II (Sheldon Society. Vol. 94) at 37–39; Jones, supra n.22 at 424.Google Scholar

94 Baker, supra n.93 at 37.

95 Ibid.

96 See supra n.50.

97 For criticism of the doctrine along these lines see Matthews v. Holmes, supra n. 87 at 80; Langstaff v. Playter, supra n. 87 at 45–46.

98 It is an exaggeration, however, to say that the Rochefoucauld doctrine amounts to judicial repeal of s.7 of the Satute of Frauds (editorial note to Brown v. Storoschuk (1947) I D.L.R. 227 (B.C.C.A.) or that it makes s.7 a “dead letter” (Langstaff v. Playter, supra n.87 at 45).Google Scholar

99 Supra p. 315.

1 See also Bannister v. Bannister [1948] 2 All E. R. 133 at 136 (C. A.); Neale v. Willis (1968) 19 P. & C.R. 836 at 839 (C. A.); Lyus v. Prowsa Developments Ltd., supra n.50.Google Scholar

2 Morris v. Whiting (1913) 15 D.L.R. 254 (Man.K.B.); Organ v. Sandwell, supra n.50 at 630Google Scholar; Beemer v. Brownridge [1934] 1 W.W.R. 545 at 555–556, 567 (Sask.C.A.); Last v. Rosenfeld, supra n.50 at 928, 930, 933Google Scholar; Wratton v. Hunter [1978] 2 N.S.W.L.R. 367 (Eq.Div). See also Ames, “Constructive Trusts Based upon the Breach of an Express Oral Trust of Land” (1907) 20 Harv.L.Rev. 549 at 549; Manitoba Law Reform Commission, supra n.9 at 62–63.Google Scholar

3 An explicit stipulation for a trust is not necessary: it is sufficient that the terms are that in substance the property should be held for the plaintiff's benefit (Bannister v. Bannister, supra n. 1 at 136) or that the defendant should be under an obligation to convey the property to the plaintiff on the happening of some event (see, e.g., Last v. Rosenfeld, supra n.50).

4 Where the property is acquired from one person on the terms that it will be held in trust for or reconveyed to the same person it is arguable that the Rochefoucauld doctrine is otiose and that the plaintiff can recover on the basis of a resulting trust: See Scheuerman v. Scheuerman, supra n.50; Kobylanski v. The Public Trustee of Alberta (1958) 15 D.L.R. (2d) 198 (Alta.S.C, App.Div.)Google Scholar; Beaton v. Hayman (1970) 16 D.L.R. (3d) 537 (N.S.S.C, T.D.)Google Scholar; David v. Szoke (1973) 39 D.L.R. (3d) 707 (B.C.S.C)Google Scholar; Hodgson v. Marks [1971] Ch. 892 (C.A.). In some cases it is unclear whether the Rochefoucauld doctrine or a resulting trust or both is relied onGoogle Scholar: See Childers v. Childers (1857) 1 De G. & J. 482; Davies v. Otty, supra n.87; Haigh v. Kaye, supra n.87; Pahara v. Pahara [1946] S.C.R. 89. The resulting trust analysis may be based on a view that the transaction gives rise to a presumption of resulting trust (see the text at nn.53 and 54 and those notes). It appears, however, that a resulting trust may arise in a case where there is no presumption: See Kobylanski v. The Public Trustee of Alberta, supra; Hodgson v. Marks, supra at 933; Ford and Lee, supra n.4 at 200.Google Scholar

5 See pp. 334–336 infra for discussion of the question whether in this situation the trust can be enforced by A or C.

6 Supra n.50.

7 See, Ashburner, W., Principles of Equity, 2nd ed. (1933) at 99. Childers v. Childers, supra n.4, might appear to have some relevance. The plaintiff, who owned land in the “Bedford Level,” wished his son to be a bailiff of the Level. To be a bailiff a person had to “have” 400 acres in the Level. The plaintiff conveyed to his son the smallest lot he had exceeding 400 acres, the conveyance being expressed to be in consideration of natural love and affection. The son died soon afterwards without having ever heard of the transaction. The plaintiff brought a bill to establish that he was beneficial owner of the land. The evidence clearly showed that the plaintiff had not intended his son to become beneficial owner. The plaintiff succeeded primarily on the ground that he had established a trust which was evidenced by signed writing. In addition, both Knight Bruce and Turner L.JJ. said that the plaintiff would have succeeded if there had been no writing, and the Statute of Frauds would not have been a defence. This point is not, however, enlarged upon and it may be that the Lord Justices considered that there would have been a resulting trust. Lincoln v. Wright, supra n.50, is also relevant but deals with a special situation. On the plaintiff's default under a mortgage B purchased the mortgaged property from the mortgagee on the terms orally agreed with the plaintiff that he would convey to the plaintiff on repayment of his expenditure. The property was conveyed into the name of B's infant daughter. On B's death his daughter's guardian claimed to be absolute owner. It was held that the Statute of Frauds was no defence to a bill brought by the plaintiff to enforce his agreement with B. Knight Bruce L.J. rested his judgment on part performance but Turner L.J. relied on the Rochefoucauld doctrine and he treated the daughter as being in the same position as B would have been if title had been put in his name. This situation is special because B had knowledge of the trust and his daughter only acquired title from him and as a volunteer.Google Scholar The recent case of Re Nichols [1974] 1 W.L.R. 296 (Ch.D.) is also relevant but the reasoning is obscure and it appears that not only was the transferee ignorant of the trust but in fact no trust was declared.

8 Supra n.l.

9 See, e.g., Wallgrave v. Tebbs (1855) 2 K. & J. 313. See Ford and Lee, supra n.4 at 201 for discussion of the application of resulting trusts in this context.

10 A related situation is where a conveyance is made by A to B on the terms that it is to be held by B as security; where, in other words, the transaction is intended to be a mortgage, parol evidence is admissible to prove the true nature of the transaction. For a detailed discussion of the cases on this topic see Labatt, , Annotation (1916) 29 D.L.R. 125–227Google Scholar. It seems that the Rochefoucauld principle would also apply when A sells and conveys Blackacre to B on the terms that C should retain a particular interest in the property: Binions v. Evans [1972] Ch. 359 (C.A.) can be justified on this basis.Google Scholar

11 Supra n.l.

12 For similar stories in decided cases see, e.g., Cadd v. Cadd (1909) 9 C.L.R. 171; Brown v. Sloroschuck, supra n.98.Google Scholar

13 Supra n.4. See also Lincoln v. Wright, supra n.50 and Barton v. McMillan (1891) 20 S.C.R. 404 where the facts were closely similar.

14 Denny v. Lithgow (1869) 16 Gr. 619 (Ont.Ct. of Ch.); Chattock v. Mutter (1878) 8 Ch.Div. 177; Longfield Parish Council v. Robson (1913) 29 T.L.R. 357 (Ch.D.); Brown v. Storoschuk, supra n.98; Owchar v. Owchar, supra n.50; Pallant v. Morgan [1953] 1 Ch. 43; McGillycuddy v. Joy [1959] I.R. 189 (H.C.). See contra James v. Smith [1891] 1 Ch. 384. See also Wells v. Petty (1896) 5 B.C.R. 353; Goldstein v. Harris (1908) 12 O.W.R. 797 (C.A.); McKinnon v. Harris (1909) 14 O.W.R. 876 (C.A.); Cadd v. Cadd, supra n.12; Swansea v. Gamble [1942] 4 D.L.R. 166 (Ont.H.C).Google Scholar

15 This injustice would be particularly obvious when the trust arrangement is admitted by the defendant: for discussion and criticism of the rule that the Statute of Frauds may be used as a defence even where the transaction in question is admitted see Stevens, “Ethics and the Statute of Frauds” (1952) 37 Cornell L.Q. 355. Also the injustice will be strongly felt where in situation (4) A relies on the arrangement with B and is. consequently, lulled into not purchasing the property for himself; and some cases have put some emphasis on reliance by A: Pallant v. Morgan, supra n.14 at 40; McGillycuddy v. Joy, supra n.14 at 214. See also Bannister v. Bannister, supra n.l at 135.

16 For views that particularly compelling evidence is necessary in this situation see Goldstein v. Harris, supra n.14; Perillo, supra n.42 at 74. Cf. Re Snowden [1979] 2 All E.R. 172 (Ch.D.).Google Scholar

17 See t he cases cited in h.50, supra.

18 See the cases cited in n.76, supra.

19 See the cases cited in n.77, supra.

20 [1893] 2 Q.B. 390 (C.A.)

21 Supra n.4 at 208.

22 See Waters, supra n.61 at 292–321.

23 Supra n.87.

24 Ibid., at 211. S.8 is set out infra, at p. 333.

25 Ibid., at 213.

26 Supra n.87.

27 In this case the defendant did rely in argument on the defence that the transaction was illegal, but it was held that the defence should not be considered since it had not been pleaded with sufficient distinctness.

28 (1740) 2 Atk. 148.

29 Supra n.87 at 472.

30 Ibid., at 474.

31 Supra n.l at 136.

32 (1968) 19 P. & C. R. 839 (C.A.). Binions v. Evans, supra n.10, also supports the view that the trust enforced is constructive. For other statements to this effect see Scheuerman v. Scheuerman, supra n.50 at 636–637; Langille v. Nass (1917) 36 D.L.R. 368 at 374 (N.S.S.C, App.Div.)Google Scholar; Re Densham [1975] 1 W.L.R. 1519 at 1525 (Ch.D.). The matter is discussed inconclusively in White v. Cabanas Pty. Ltd. (No. 2) [1970] Od.R. 395 at 400, 406–407 (Sup.Ct.). See also Pahara v. Pahara, supra n.4.Google Scholar

33 The modern English provision is s.53(2) of the Law of Property Act 1925, which states: “This section does not affect the creation or operation of resulting, implied or constructive trusts.”

34 The provision passed as s.8 of the Statute of Frauds was in almost the same terms as the provision in Lord Nottingham's original draft: see Hening, , supra n.7 at 286. Lord Nottingham discussed in his Prolegomena of Chancery and Equity what he there described as trusts “raised by construction and implication of law.” The cases discussed by him are mainly examples of what today would be described as implied trusts and resulting trusts. The only discussion of what today would ordinarily be called a constructive trust is a discussion of the effect of a trustee obtaining a renewal of a leaseGoogle Scholar: see Yale, , supra n.22 at 239–244.Google Scholar

35 The modern English provision, s.53(2) of the Law of Property Act 1925. is expressed more broadly and obscurely than the provision it replaced. It also, however, does not s e em to be apt to deal with a trust that was only created because of the operation of s.53(l) of the Act.

36 Supra pp. 323–324.

37 E.g., secret trusts, mutual wills, acquisition of property by killing. See. e.g., Hanbury and Maudsley, supra n.64. Chap. 14.

38 See Langilk v. Nass, supra n.32, where the trust was thought to be constructive but it was imposed for the benefit of third parties.

39 See, e.g., Rochefoucauld v. Boustead, supra n.4at 206; Bannister v. Bannister, supra n. 1 at 136.

40 Supra pp. 330–331.

41 Supra pp. 328–329.

42 Supra n.32. Binions v. Evans, supra n.10, c an also be explained as a case where A purchased property from B on the terms that it would be held to give effect to a benefit for C; and C was able to enforce the constructive trust arising for his benefit. Claims of third party beneficiaries were enforced in a trio of Canadian cases: May v. Hainer (1917) 40 O.L.R. 436 (C.A.)Google Scholar; Langilk v. Nass, supra n.32; Allison v. Allison [1943] 3 D.L.R. 637 (Man.C.A.).Google Scholar

43 Scott, supra n.2 at 354. See also Scott, “Conveyances upon Trusts not Properly Declared” (1924) 37 Harv.L.Rev. 653 at 664–670; Ames, supra n.2 at 551. Contrast the views of Costigan, supra n.65 at 429–437, 445–446Google Scholar; Palmer, G. E., Law of Restitution (1978) Vol. 11 at 65–74, 121–127.Google Scholar

44 See Hanbury and Maudsley, supra n.64 at 250.

45 Cf. Olds “Oral Trusts of Land for Grantor-Restitution” (1968) 6 Houston L.Rev. 113 at 119.

46 See Supra pp. 320–322.

47 See Costigan, supra n.65 at 432–433.

48 Ibid., at 446.