ARTICLE 10 FRAUDS - STATUTE OF FRAUDS

• Jurisdiction: Colorado

ARTICLE 10 Frauds - Statute of Frauds

Cross references: For formal requirements for defense of statute of frauds, see § 4-2-201; for modification, rescission, and waiver of contract, see § 4-2-209; for nature of a sale on approval and sale or return, see § 4-2-326; for pleading fraud as a defense, see C.R.C.P. 8.

■ 38-10-106. Conveyance - trust - power must be in writing. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands or in any manner relating thereto shall be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.

Source: R.S. p. 338, § 6. G.L. § 1256. G.S. § 1515. R.S. 08: § 2660. C.L. § 5105. CSA: C. 71, § 6. CRS 53: § 59-1-6. C.R.S. 1963: § 59-1-6.

ANNOTATION

I. General Consideration.

II. Express Trusts.

III. Resulting and Constructive Trusts.

IV. Authority of Agent.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Express Trusts in Colorado", see 10 Rocky Mt. L. Rev. 9 (1937). For article, "An Aspect of Estate Planning in Colorado: The Revocable Inter Vivos Trust", see 43 Den. L.J. 296 (1966). For note, "A Survey of Colorado Water Law", see 47 Den. L.J. 226 (1970). For article, "Signatures on Documents Affecting Title to Colorado Real Property -- Part III", see 12 Colo. Law. 447 (1983).

Statute of frauds only concerns making of contracts. Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640 (1955).

Statute of frauds is inapplicable to revocation of contracts. Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640 (1955).

Statute of frauds inapplicable to executed contracts. Sherman v. Randle, 79 Colo. 243, 245 P. 717 (1926).

Rescission of executing contract by parol agreement permitted. An executory contract involving title to, or an interest in, land may be rescinded by an agreement resting in parol. Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640 (1955).

Statute of frauds is inapplicable to equitable trusts. Pagev. Clark, 40 Colo. App. 24, 572 P.2d 1214 (1977), rev'd on other grounds, 197 Colo. 306, 592 P.2d 792 (1979).

Agreement restricting use of land is not within statute of frauds because it does not relate to an interest in land but merely to its use. Thornton v. Schobe, 79 Colo. 25, 243 P. 617 (1925).

Interest in deed of trust is not an interest in the underlying land. Since Colorado is a lien theory jurisdiction, statute of frauds does not bar suit on oral agreement to execute and deliver a mortgage upon real estate. Bigelow v. Nottingham, 833 P.2d 764 (Colo. App. 1991), rev'd on other grounds sub nom. Haberl v. Bigelow, 855 P.2d 1368 (Colo. 1993).

Promissory note secured by a deed of trust for real property does not create an interest in land. Crown Life Ins. Co. v. Haag Ltd. P'ship, 929 P.2d 42 (Colo. App. 1996).

Settlement of accounts following partnership termination independent of status of realty. When the business of a partnership, organized to lease and operate a mine during a limited period for the sole purpose of making a profit through the extracting and marketing of ores therefrom, had been terminated in a suit brought by one of the partners to settle the partnership accounts and distribute the partnership profits and other assets, no interest in realty was involved, and, in such cases, the right to a settlement and distribution in no way depends upon the legal status of realty under the statute of frauds, therefore, this section is inapplicable to the right to a settlement and distribution. Meagher v. Reed, 14 Colo. 335, 24 P. 681 (1890).

A written conveyance from a partner who contributes real estate to a partnership is not required to convert the property into partnership property because the partnership statutes and the trust relationship between partners sufficiently protect partners from fraud. In re Estate of Grosboll, 2013 COA 141, 315 P.3d 1284.

Partial performance removes contract from scope of statute. Where there is an accounting between parties when one party paid over half the profits from jointly owned land, there is such partial performance of a contract conveying a one-half interest in land as would remove the contract from the scope of the statute. Bushner v. Bushner, 134 Colo. 509, 307 P.2d 204 (1957).

Method of use of land not subject to section. Method of use of land is not estate or interest in land, subject to this section. Thornton v. Schobe, 79 Colo. 25, 243 P. 617 (1925).

Profits on purchase and sale of land not an "estate or interest" in the land, subject to this section. Von Trotha v. Bamberger, 15 Colo. 1, 24 P. 883 (1890); Thornton v. Schobe, 79 Colo. 25, 243 P. 617 (1925).

Defense involves questions of fact and law. The defense of the statute of frauds involves questions of fact as well as law. Bushner v. Bushner, 134 Colo. 509, 307 P.2d 204 (1957).

Proof of parol agreement prohibited absent fraud, accident, or mistake. In the absence of the elements of fraud, accident, or mistake, the grantor in an absolute conveyance is prohibited by the statute of frauds from setting up and proving a parol agreement, in which the grantee was to hold the land in trust for his benefit. Hall v. Linn, 8 Colo. 264, 5 P. 641 (1885); Bohm v. Bohm, 9 Colo. 100, 10 P. 790 (1885); Von Trotha v. Bamberger, 15 Colo. 1, 24 P. 883 (1890).

To exclude the operation of the statute on the ground of fraud where an oral agreement is alleged as a foundation of the trust, it must appear that the promise is used as a means of imposition or deceit; the promise may be received in evidence as one of the steps by which the fraud was accomplished. Bohm v. Bohm, 9 Colo. 100, 10 P. 790 (1885).

Unless the transaction was tainted with either actual or constructive fraud, trust could not be created by parol. Hodgson v. Fowler, 7 Colo. App. 378, 43 P. 462...