Belton v. Buesing

LUSK, J.,

specially concurring.

So far as the opinion of the court holds that there was an enforceable oral express trust it rests upon a ground not taken by the plaintiff State Treasurer and not suggested in the record, briefs or oral argument. The position of the court, as I understand it, is that such an oral trust will be enforced where the alleged trustee does not repudiate it in reliance upon the statute of frauds, and, as the defendant has not invoked the statute, there is no occasion to look further, either for a resulting trust or a constructive trust.

While it is held by most courts…