Hagberg, R. E.

English

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Volume 40 Issue 4 Article 18 June 1934 Trusts--Constitutional Law--Retroactivity of Provision of 1931 Code as to Parol Trusts R. E. Hagberg West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Estates and Trusts Commons Recommended Citation R. E. Hagberg, Trusts--Constitutional Law--Retroactivity of Provision of 1931 Code as to Parol Trusts, 40 W. Va. L. Rev. (1934). Available at: https://researchrepository.wvu.edu/wvlr/vol40/iss4/18 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. RECENT CASE COMMENTSTRUSTS - CONSTITUTIONAL LAW - RETROACTIVITY OF PRO-VISION OF 1931 CODE AS TO PAROL TRUSTS. - In 1930 plaintiffby deed conveyed land to defendant on parol trust for plaintiff.In 1933 plaintiff seeks a reconveyance. In the meantime 36-1-4had been enacted, requiring a writing only in the case of a declara-tion of trust by settlor. Held: In the absence of fraud, grantorcannot here set up a parol trust in his favor; and the statute of1931 does not effect the rule, so far as it relates to deeds executedprior thereto. Hall v. Burns.'When Virginia and in turn West Virginia enacted theirStatutes of Frauds, Sec. VII of the English Statute of Frauds'making a writing necessary in order to create enforceable expresstrusts, was omitted. As a consequence, it would seem that inWest Virginia all parol trusts were valid. But in the early caseof Troll v. Carter' the rule was laid down that a grantor could nothave an oral trust in his favor because it violated the parolevidence rule and the Statute of Frauds. It is argued that theparol evidence rule has nothing to do with the case.' However,the rule and its reasons were followed by a long line of decisionsuntil it became settled law in West Virginia.'36-1-4' was enacted to "clarify the law upon the whole sub-ject of trusts."' Can it operate retroactively so as to change theresult reached in the principal case?It is suggested that the answer may be derived from theanalogous instance in the field of retroactive laws, of reviving an-169 S. E. 522 (W. Va. 1933).2 HENING, STATS. AT LARGE, vol. 12, (1785) c. LXIV; CODE OF VIRGINIA(1923) c. 232.8 CODE (1868) c. 98; BARNES' W. VA. CODE (1923) c. 98; W. VA. REV. CODE(1931) c. 31, art. 1, §§ 3 & 4.'29 CHAs. II c. 3 (1676).015 W. Va. 567 (1879).'Madden, Trusta and the Statute of Frauds (1924) 31 W. VA. L. Q. 166.Of course, the parol evidence rule should not apply normally in equity; other-wise there never could be rescission for duress or fraud, or reformation formutual mistake of fact, etc.7 Zane v. Fink, 18 W. Va. 693 (1881);; Pusey v. Gardner, 21 W. Va. 469(1883) ; Pain v. Cox, 23 W. Va. 594 (1884) ; Handlan v. liandlan, 42 W. Va.309, 26 S. E. 179 (1896); Richardson v. McConaughey, 55 W. Va. 546, 47S. E. 287 (1904); Crawford v. Workman, 64 W. Va. 19, 61 S. E. 322 (1908);Hawkinberry v. Metz, 91 W. Va. 637, 640, 114 S. E. 240 (1922).'" No declaration of trust of land shall be enforceable, unless it be madein writing, signed by the person who declared such trust, or by his agent. Ifa conveyance of land, not fraudulent, is made to one in trust, either for thegrantor or a third person, such trust may be enforced, though it be not dis-closed on the face of the conveyance, nor evidenced by writing .....' See Revisers' note to 36-1-4 supra n. R.1Hagberg: Trusts--Constitutional Law--Retroactivity of Provision of 1931 CoDisseminated by The Research Repository @ WVU, 1934WEST VIRGINIA LAW QUARTERLYaction barred by the statute of limitations. There are three viewsas to the validity of such laws ," 1. These are valid.' 2. These areinvalid.' 3. These are permissible where the circumstances appealwith some strength to the prevailing views of justice.' Yet allcases under the first and third group agree that the scope of validretroactivity is limited, and does not extend to reviving actionsbarred by the statute of limitations, involving title to specificproperty."The parol evidence rule is, in West Virginia, a rule of sub-stantive law,' and fixed the status of the parties in the deed of1930. Those "vested rights must not be disturbed".'-R. E. HAGBERG.10 Note (1924) 19 ILL. L. Rv. 355.uCampbell v. Holt, 115 U. S. 620, 29 L. Ed. 483 (Tex. 1885). (Removalof the statute of limitations with regard to a debt); see also, 45 L. R. A. 609,for a summary of cases."Board of Education v. Blodgett, 155 Ill. 441 (1895); Eingartner v. lR-nois Steel Co., 103 Wis. 373 (1899); see also, 45 L. R. A. 609.'Danforth v. Groton Water Co., 178 Mass. 472 (1901); Dunbar v. Boston& P. R. Corp., 181 Mass. 383 (1902); Southern Pacific Co. v. Jensen, 244U. S. 205 (N. Y. 1917).1 Supra n. 11 and n. 13. (In Campbell v. Holt, p. 623, the court says, "Itmay, therefore, very well be held that, in an action to recover real or personalproperty, where the question is as to the removal of the bar of the statute oflimitations by a legislative act passed after the bar has become perfect, suchact deprives the party of his property without due process of law. Thereason is, tlat, by the law in existence before the repealing act, the propertyhad become the defendant's. Both the legal title and real ownership hadbecome vested in him, and to give the act the effect of transferring this titleto plaintiff, would be to deprive him of his property without due process oflaw. ""JONES, COMMEN IES ON EVMENCE (2d ed.) § 1842; GnE ,EAF (16thed) § 305a; WinxoRE oN EVIDENCE (2d ed.) § 2400; 22 C. J. p. 1075, § 1380.0Johnson v. Sanger, 49 W. Va. 405, 38 S. E. 645 (1901); 12 C. J. onConstitutional Law, § 486; 6 R. C. L. on Constitutional Law, § 293. Seealso, supra n. 14.2West Virginia Law Review, Vol. 40, Iss. 4 [1934], Art. 18https://researchrepository.wvu.edu/wvlr/vol40/iss4/18

Trusts--Constitutional Law--Retroactivity of Provision of 1931 Code as to Parol Trusts

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Trusts--Constitutional Law--Retroactivity of Provision of 1931 Code as to Parol Trusts

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