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cannot get, and the trustee may keep, the land. But shall he be allowed to keep also the money or other consideration given to him by the cestui que trust? It is one thing for a promisor to save himself from a loss by reliance upon the statute, and quite another to make the statute a source of profit to himself at the expense of the promisee. Justice demands the restoration, so far as possible, of the status quo by compelling the trustee to surrender to the cestui que trust whatever he received from the latter upon the faith of his promise to perform the trust. Such relief does not in any way infringe upon the statute. The invalidity of the express trust is fully recognized. Indeed, it is the exercise of the trustee's right to use it as a defense that creates the cestui que trust's right of restitutio in integrum. This conclusion is abundantly supported by the decisions. One who has received money for an oral agreement to convey land, and refuses to convey, must refund the money. If the consideration given for such an agreement was work and labor, that of course cannot be given back in specie, but the promisor must pay the value of such work and labor. If the consideration was in the form of chattels, the promisor who breaks his promise, and also refuses to return the chattels, may be sued in trover or replevin, if he still has them, and in quasi-contract for their value or their proceeds, if he has consumed them or sold them. Similarly, if the oral agreement was for the exchange of lands, and one party having conveyed his, the other refuses to make the counter conveyance, the grantor may compel a reconveyance of his own land if the grantee still has it," and may recover the proceeds of the sale or its value if it has been sold.1

1 Allen v. Booker, 2 Stew. (Ala.) 21 ; Barickman v. Kuykendall, 6 Blackf. (Ind.) 21; Hunt v. Sanders, i A. K. Marsh. (Ky.) 556; Jellison v. Jordan, 68 Me. 373; Cook 7. Doggett, 2 Allen (Mass.) 439; Bacon v. Parker, 137 Mass. 309, 31; Payne v. Hackness, 84 Minn. 195; Perkins v. Niggerman, 6 Mo. App. 546; Gilbert v. Maynard, 15 Johns. (N. Y.) 85; Cade v. Davis, 96 N. C. 139; Rineer v. Collins, 156 Pa. St. 342; Bedell v. Tracy, 65 Vt. 494; Thomas v. Sowards, 25 Wis. 631.

2 Grant v. Grant, 63 Conn. 530; Schoonover v. Vachon, 121 Ind. 3; Holbrook v. Clapp, 165 Mass. 563; Ham v. Goodrich, 37 N. H. 185; King v. Brown, 2 Hill (N. Y.) 485; Gifford v. Willard, 55 Vt. 36; Kessler's Estate, 87 Wis. 660.

3 Keath v. Patton, 2 Stew. (Ala.) 38; Updike v. Armstrong, 4 Ill. 564; Shreve v. Grimes, 4 Litt. (Ky.) 220, 223; Keith v. Patton, i A. K. Marsh. (Ky.) 23; Duncan v. Baird, 8 Dane (Ky.) 101; Luey v. Bundy, 9 N. H. 298; Rutan v. Hinchman, 30 N. J. L. 255; Orand v. Mason, i Swan (Tenn.) 196; Miller v. Jones, 3 Head (Tenn.) 525.

4 Sailors v. Gambril, Smith (Ind.) 82. In some jurisdictions the remedy of quasicontract is allowed, although the sale or destruction of the chattel is not established. Booker v. Wolf, 195 Ill. 365.

5 Burt v. Bowles, 69 Ind. 1; Jarboe v. Severin, 85 Ind. 496; Ramey v. Stone, 23 Ky. L. Rep. 301 ; Dickerson v. Mays, 60 Miss. 388.

2. Conveyances upon trust for the grantor or a third person, and devises upon trust for a third person.

If A conveys land to B upon an oral trust to hold for or reconvey to himself, the grantor, and B repudiates the trust which he assumed in good faith, the case is clearly within the principles which we have found to govern the first class of cases already considered. A cannot enforce performance of the express trust because of the statute of frauds. But B ought not to be allowed to retain A's land and thus by his breach of faith to enrich himself at the expense of A. If he will not perform the express trust, he should be made to reconvey the land to A, and to hold it until reconveyance as a constructive trustee for A. A, it is true, may by means of this constructive trust get the same relief that he would secure by the enforcement of the express trust. But this is a purely accidental coincidence. His bill is not for specific performance of the express trust, but for the restitution of the status quo. This right to restitutio in integrum has been enforced in several English cases. There are a decision in Canada 8 and a dictum in Missouri 4 to the same effect. In Massachusetts the grantor is allowed to recover not the land but the value of the land in a count for land conveyed. But in several states the grantor is not allowed to recover either the land or its value. In many

1 Wiley v. Bradley, 5 Ind. App. 272; Smith v. Hatch, 46 N. H. 146; Smith v. Smith, Winst. Eq. (N. C.) 30. In Bassford v. Pearson, 9 Allen (Mass.) 387, there is a dictum that assumpsit for money had and received cannot be maintained by the grantor for the proceeds of his land sold by the grantee. No reason is given for this dictum and it seems indefensible. In several cases the grantor was allowed to recover the value of his land from the grantee who still had it, but the question of the plaintiff's right to recover the land itself seems not to have been in the mind of either party. Bassett v. Bassett, 55 Me. 127; Miller v. Roberts, 169 Mass. 134 ; Nugent v. Teachout, 67 Mich. 571; Dikeman v. Arnold, 78 Mich. 455; Andrews v. Broughton, 78 Mo. App. 179; Henning v. Miller, 83 Hun (N. Y.) 403.

2 Davies v. Otty, 35 Beav. 208; Haigh v. Kaye, L. R.7 Ch. 469; Booth v. Turle, L. R. 16 Eq. 182; Marlborough v. Whitehead, [1894) 2 Ch. 133; De la Rochefoucauld v. Bonstead, (1897). 1 Ch. 196.

3 Clark v. Eby, 13 Grant Ch. (U. C.
4 Peacock v. Peacock, 50 Mo. 256, 261.

ó Twomey v. Crowley, 137 Mass. 184; O'Grady v. O'Grady, 162 Mass. 290 ; Cromwell v. Norton, 79 N. E. Rep. 433 (Mass., 1906).

6 Mescall v. Tully, 91 Ind. 96; Calder v. Moran, 49 Mich. 14 (semble); Wolford v. Farnham, 44 Minn. 159; Marcel v. Marcel, 70 Neb. 498; Sturtevant v. Sturtevant, 20 N. Y. 39.

others, also, the courts, while properly refusing to enforce the express trust, give no intimation of any right to recover the land on any theory of restitution, or its value on the principle of quasicontract. 1

The Massachusetts rule permitting the grantor to recover the value of the land instead of the land itself is illogical. It is based upon the principle of restitution. But this principle requires restitution in specie whenever it is practicable, and restitution in value only as a substitute when specific restitution is impossible. The Massachusetts rule, too, is inferior to the English rule in point of justice. If the grantee, when he repudiates his oral obligation, is insolvent, the grantor in Massachusetts must come in with the general creditors and get only a dividend on the value of the land, whereas in England he would recover the land itself. The statute of limitations would bar the money claim much sooner than the claim for the land. If, again, after the repudiation of the express oral trust, the land should appreciate greatly in value, the repudiator would, in Massachusetts, reap the benefit of this appreciation, while in justice it should go to the grantor.?

But restitution in value is certainly an approximation to full justice, and in many cases the grantee would be as well satisfied with the value of the land as with the land itself. But there is nothing to be said in defense of the prevailing American doctrine which gives the grantor neither the land nor its value. This doctrine is due to the failure of the court to perceive that specific performance of an express agreement and compulsory restitution of the consideration for the agreement are fundamentally different things, even in cases in which the practical result of the two remedies is the same. This oversight of the American courts is the

1 Patton v. Beecher, 62 Ala. 579; Brock v. Brock, 90 Ala. 86; Jacoby v. Funkhouser, 40 So. Rep. 291 (Ala., 1906); McDonald v. Hooker, 57 Ark. 632; Barr v. O'Donnell, 76 Cal. 469; Sheehan v. Sullivan, 126 Cal. 189; Verzier v. Conrad, 75 Conn. I; Stevenson v. Crapnell, 114 Ill. 19; Moore v. Horsley, 156 Ill. 36; Fouty v. Fouty, 34 Ind. 433; Gowdy v. Gordon, 122 Ind. 533 ; Ostenson v. Severson, 126 la. 197 ; Gee v. Thrailkill, 45 Kan. 173; Wentworth v. Skibles, 89 Me. 167; Moore v. Jordan, 65 Miss. 229; Conner v. Follansbee, 59 N. H. 124; Hogan v. Jaques, 19 N. J. Eq. 123; Lovett v. Taylor, 54 N. J. Eq. 311 (criticizing the English cases); Boreham v. Craig, 80 N. C. 224; Barry v. Hill, 166 Pa. St. 344; Taft v. Dimond, 16 R. I. 584; Kinsey v. Bennett, 37 S. C. 319; Parry v. American Co., 56 Wis. 221.

2 It is assumed that the value of the land at the time of the repudiation of the express trust would be the amount payable by the grantee. But there seems to be no decision on this point.

3 Some of the American decisions were influenced by a hasty and now overruled

more surprising, because in another class of cases, not to be distinguished in principle from those under consideration, the same courts, unwilling to permit the grantee to profit by his breach of faith at the expense of the grantor, have rightly given to the grantor, by way of restitution, the same practical relief which specific performance would have given him if that could have been enforced. This other class of cases is commonly said to illustrate the rule that oral evidence is admissible to show that an absolute conveyance was intended to operate as a mortgage. This, of course, is a loose way of stating the principle. In truth, equity cannot compel specific performance of the oral agreement to reconvey, because the statute of frauds forbids. But, if the grantor pays or tenders the amount due to the grantee, it would be shockingly unjust for the grantee to keep the land. Equity therefore says to the grantee, “We cannot compel you to perform your promise to reconvey, but if you will not keep your word, surrender to the grantor what you received from him on the faith of your promise." Obviously this reasoning, which justifies the result in the mortgage cases, is equally cogent in the cases in which A conveys to B upon an oral trust to reconvey, and in England both classes of cases are dealt with as resting upon the same principle of restitutio in integrum.

If A conveys land to B upon an oral trust for C, and B refuses to perform the trust, the rights of the parties are easily defined. C obviously cannot enforce the express trust, nor, since he has

judgment of Leach, V. C., in Leman v. Whitley, 4 Russ. 423. In that case the really gratuitous conveyance upon the oral trust for the grantor purported to be in consideration of £400. The vice-chancellor, having committed the error of refusing relief by way of restitution, was so much impressed by the resulting injustice that he gave the grantor a vendor's lien for the ostensible purchase money, and thereby fell into another

This error was repeated in Gallagher v. Mars, 50 Cal. 23 ; McCoy v. McCoy, 32 Ind. App. 38. But this extension of the vendor's lien to cover a case in which no money was payable has been generally repudiated. Stevenson v. Crapnell, 114 III. 19; Ostenson v. Severson, 126 Ia. 197 ; Palmer v. Stanley, 41 Mich. 218; Tatge v. Tatge, 34 Minn. 272.

error.

i Skett v. Whitmore, Freem. Ch. (Miss.) 280; Jacoby v. Funkhouser, 40 So. Rep. 291 (Ala., 1906); Ammonette v. Black, 73 Ark. 310; Smith v. Mason, 122 Cal. 426; Robson v. Hamell, 6 Ga. 589; Lantry v. Lantry, 51 Ill. 458; Marie Church v. Trinity Church, 205 IIl. 601; Meredith v. Meredith, 150 Ind. 299; Willis v. Robertson, 121 Ia. 380; Rogers v. Richards, 67 Kan. 706; Philbrook v. Delano, 29 Me. 410; Campbell v. Brown, 129 Mass. 23; Perkins v. Perkins, 181 Ill. 401; Shaffter v. Huntington, 53 Mich. 310; Luse v. Reed, 63 Minn. 5; Metcalf v. Brandon, 58 Miss. 841; Taylor v. Sayles, 57 N. H. 465; McVay v. McVay, 43 N. J. Eq. 47 ; Goldsmith v. Goldsmith, 145 N. Y. 313, 318 (but see Ahrens v. Jones, 169 N. Y. 555); Salter v. Bird, 103 Pa. St. 436; Perkins v. Cheairs, 58 Tenn. 194.

parted with nothing, can he have relief upon any other ground. But A, as in the preceding case, may recover his land, for B may not honestly keep it if he will not fulfill the promise which induced A to part with it. In Massachusetts A would probably recover the value of the land instead of the land itself.2

One would expect a devise by A to B upon an oral trust for C to create the same rights upon B's refusal to perform the trust as a conveyance by A to B upon an oral trust for C, except that, restitution to the testator being impossible, his heir, as representing him, would be entitled to the reconveyance of the land. But by a strange inconsistency in the law both in England and in this country, C is allowed to get the benefit of the trust in spite of the statute of frauds. These decisions were induced by the desire to prevent the use of the statute as an instrument of fraud. But the courts seem to have lost sight of the distinction between a misfeasance and a non-feasance, between a tort and a passive breach of contract. If a devisee fraudulently induces the devise to himself, intending to keep the property in disregard of his promise to the testator to convey it or hold it for the benefit of a third person, and then refuses to recognize the claims of the third person, he is guilty of a tort, and equity may and does compel the devisee to make specific reparation for the tort by a conveyance to the intended beneficiary. If, on the other hand, the devisee has acquired the property with the intention of fulfilling his promise, but afterwards decides to break it, relying on the statute as a defense, he commits no tort, but a purely passive breach of contract. Equity should not compel the performance of this contract at the suit of the beneficiary, because the statute forbids. But, notwithstanding this

1 Hal v. Linn, 8 Colo. 264; Von Trotha v. Bamberger, 15 Colo. 1 (semble); McKinney v. Burns, 31 Ga. 295; Peacock v. Peacock, 50 Mo. 256, 261.

But see, contra, Irwin v. Ivers, 7 Ind. 308 ; Calder v. Moran, 49 Mich. 14 (semble).

2 Basford v. Pearson, 9 Allen (Mass.) 387 (discrediting Griswold v. Messenger, 6 Pick. (Mass.) 517); Twomey v. Crowley, 137 Mass. 184.

3 Sellach v. Harris, 2 Eq. Cas. Abr. 46, pl. 11; Norris v. Fraser, 15 Eq. Rep. 318; De Laureheel v. De Boom, 48 Cal. 581; Buckingham v. Clark, 61 Conn. 204; Larmon v. Knight, 140 III. 232; Ramsdel v. Moore, 153 Ind. 393; Gilpatrick v. Glidden, 81 Me. 137 ; Gaither v. Gaither, 3 Md. Ch. 158; Campbell v. Brown, 129 Mass. 23, 26; Hooker v. Axford, 33 Mich. 453; Ragsdale v. Ragsdale, 68 Miss. 92; Smullin v. Wharton, 103 N. W. Rep. 288 (Neb., 1905); Carver v. Todd, 48 N. J. Eq. 102; Norton v. Mallory, 63 N. Y.434 ; Collins v. Barton, 20 Oh. 492; McAuley's Estate, 184 Pa. St. 124; Rutledge v. Smith, 1 McCord Eq. (S. C.) 119; McLellan v. McLean, 2 Head (Tenn.) 684.

But see, contra, Moore v. Campbell, 102 Ala. 445; Orth v. Orth, 145 Ind. 184.

4 Crossman v. Keister, 79 N. E. Rep. 58 (111., 1906); Newis v. Topfer, 121 la. 439; Wall v. Hickly, 112 Mass. 171; Pollard v. McKenney, 69 Neb. 742.

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