SUPREME COURT.—This Day.

Auckland Star, Volume VI, Issue 1749, 22 September 1875, Page 2

SUPREME COURT.—This Day.

IN BANGO.

(Before His Honor Mr Justice Gillies.) HEKDERSOX AXD SPKAGGON" V. MACKENZIE. UtTDGMEST ON DEMUBRER.) In this action the plaintiffs sued to compel defendant to carry out an agreement by which he undertook to purchase land conjointly for himself and the plaintiffs. The facts showed that after the purcase defendant kept the land to himself, and in answer to plaintiffs declaration, set up a demurrer that though the facts were correct there was no legarobligation to carry out the agreement. The argurrient took place at the last sitting when Mr Rees appeared for the plaintiffs and Mr Hesketh for the defendant. His Honor now proceeded to delire? the following judgment:—This action is brought by the plaintiffs to charge the defendant with a"trust in respect of a portion of certain lands and hereditaments bought by him from third parties. The declaration is demurred to on the ground that the trust sought to be charged on the defendant is not manifested, or proved by writing, i c., the 7th section of the Statute of Frauds.is set up as an answer. On argument it appeared to be agreed on both sides, and I thipk properly so, for the purpose of determining the question at issue between the parties, that if the trust sought to be enforced was one which required manifestation in writing, the declaration ought to allege such Writing, which it does not do. But it was contended on behalf of the plaintiffs that the trust sought to be charged on the defendant was not an express trtfst or one to be implied or resulting from any writing, but as a trust arising by operation of law^from the circumstances set forth in the declaration, or in other words was what is called a constructive trust, or one resulting from the acts of the par ies, which does not require to be. manifested Of proved by writing. Let us examine whether the facts alleged in tbe declaration do raise such a constructive trust—a trust arising therefrom '■ by operation of law. The facts set forth in the declaration are first a parol agreement; between the plaintiffs and defendant, that defendant would buy the lands in question together with other lands on his own account, and on account of the plaintiffs and others respectively, and a breach of that agreement by his purchase with his own money and in his own name, and refusal to convey any part to the plaintiffs. It is clear, however, from the authorities, and was admitted on the argument, that a breach of such a merely parol agreement could not constitute a trust in avoidance of tbe Statute of Frauds. But it was argued that the other facts alleged in supplement of the agreement sufficed to support the creation of a trust notwithstanding the Statute. What were the other facts alleged in the declaration ? They were than certain vendors were willing to sell part of the estate to the plaintiffs, but were not willing to sell another part to the defendant un!es3 the plaintiffs bought their portion. Also, that the defendant for his own convenience and advantage requested the plaintiffs not to buy, but to allow him to buy the whole on joint (their respective) account ; and that they, therefore, refrained from buying. In the declaration there is nothing more alleged besides the argument and breach. ' These alleged facts admitted by the demurrer to be true, do not appear to me to create any greater fiduciary relation between the plaintiffs and the defendant than would have existed in consequence of the alleged agreement The request and consent in fact constitute the agreement alleged. There is no fraud, that is fraudulent representation alleeed, by which the plaintiffs were inducsd to alter their position to their disadvantage nor is.it alleged that the defendant, by mean of the consent of the plaintiffs to his making the purchase in his own name, obtained any special advantage from the vendors on his own behalf. It seems to me, therefore, that the declaration discloses no sufficient facts to support a cocstructive trust, and that the facts show exactly such a state of things as the Statute of Fraud on the demurrer was intended to guard against. Judgments must therefore be for ihe defendant with costs.