a thesis - Institute of Advanced Legal Studies

28 EXPRESS TRUSTS.
of the property in favour of A., he is the beneficial owner of it and
the person enabled to declare the trust. (Tierney v. Wood (1854),
19 Beav. 330 ; Kronheim v. Johnson (1877), 7 Ch. D. 60.)
The statute, however, does not apply where it would operate to
effectuate a fraud. In Rochefoucauld v. Boustead (1897, 1 Ch.
196), Lindley, L. J., delivering the judgment of the Court of
Appeal (Lord Halsbury, L. C., and Lindley and A. L. Smith,
L. JJ.), said :" It is ... established by a series of cases, the propriety
of which cannot now be questioned, that the Statute of
Frauds does not prevent proof of a fraud; and it is a fraud on the
part of a person to whom land is conveyed as a trustee, and who
knows it was so conveyed, to deny the trust and claim the land
himself. Consequently, notwithstanding the statute, it is competent
for a person claiming land conveyed to another to prove by
parol evidence that it was so conveyed upon trust for the claimant,
and that the grantee, knowing the facts, is denying the trust and
relying upon the form of conveyance and the statute in order to
keep the land himself. This doctrine was not established until
some time after the statute was passed. In Bartlett v. Pickersgill
(1759, 1 Eden, 515), the trust was proved, and the defendant,
who denied it, was tried for perjury and convicted, and yet it was
held that the statute prevented the court from affording relief to
the plaintiff. But this case cannot be regarded as law at the
present day. The case .... is inconsistent with all modern
decisions on the subject."
"Land" in s. 7 of the Statute of Frauds is said by Lewin to
include copyhold land (10th ed. 53), and he cites Withers v.
Withers (1752, Amb. 152). The report of this case states that
Lord Hardwicke was of opinion " that resulting trusts of copyholds
as well as of freeholds are within the Statute of Frauds and
Perjuries." But, as Mr. Hargrave in a note to this passage points
out, there must be some misprint, or reporter's mistake, here, for
resulting trusts are excepted from the statute by the eighth section.
However, all the text-book writers treat the case as deciding that
copyhold land is within the act. It seems to be clear that leasehold
land is within it from the cases of Skett v. Whit more (1705,
2 Freem. 280) and Forstcr v. Hale (1798, 3 Ves. 696), and, if
leaseholds are, it is difficult to see why copyholds should not be,
although Mr. Hargrave in the passage cited says distinctly that
they are not.