In Rochefoucauld v Boustead (1897), Lindley LJ said ‘that the Statute of Frauds does not prevent the proof of a fraud; and that it is a fraud on the part of the person to whom the land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself’.
Section 53(1)(b) of the Law of Property Act 1925 provides that ‘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’. S53(1)(b) indicates that in cases where there is a purported oral declaration of trust, it is not void without the element of writing, but merely unenforceable against the trustee. This requirement of…show more content…
Therefore, by making an express oral declaration that from the moment of acquisition Mr. Boustead will hold the land on trust for Mrs. Rochefoucauld; it would be fraud in equity if he were to rely on the absence of writing in order to deny the trust, which allowed him to acquire title in the first place. Thus it was decided in this case, that Mrs. Rochefoucauld was beneficially entitled to the surplus of the proceeds from the sale of the land, after the deduction of the purchase price and expenses incurred by the trustee (as per their agreed condition when the express trust was declared) (Gray & Gray, Land Law).
S53(2) of the Law of Property Act provides that the documentary formality requirement does not affect the creation or operation of resulting, implied or constructive trusts. I will now discuss how the imposition of these trusts uphold the doctrine of Rochefoucauld v Boustead (that statute will not be used as an instrument of fraud) and prevent fraud without contravening statute by enforcing a declaration of express trust.
In Hodgson v Marks, a resultin3g trust was imposed where the intentions of the transferor were not upheld. The court held that although Mrs. Hodgson could not have claimed an oral express trust due to s53(1)(b), the oral agreement did prove that she did not intend to transfer the whole of her equitable interest and therefore formed a resulting trust of the beneficial interest to her, which would not be affected by s53(1). However,