Opinion of the Court.

In this communication, it is seen, Withrow asserts a right to one-eighth interest in the entire property of the land company, as having been awarded to him. If this claim of an interest in the property had been a false and fraudulent one, set up to defraud others, we should expect some denial of it from Tracey; but instead of that we find its correctness affirmed by him. It is difficult to believe that a claim for property, estimated at the time to be worth $40,000, would have received recognition from one who, if the claim was fraudulent, knew it to be so. On the contrary, we should expect that it would meet with instant and indignant repudiation.

But if we admit the statement of the complainants as to the alleged promise of Tracey to give his interest in the property of the land company to Mrs. Allen, and as to the execution of the two deeds-the one in blank and the one to Withrowthere is no case shown for the relief prayed by the bill.

The promise alleged to have been made in conversation with Allen and his daughter on the trip to St. Paul was without consideration, good or valuable; there was no relationship, by blood or marriage, between Mrs. Allen and Tracey. It was the promise of a pure donation to be subsequently made; and, until executed, it was, in a legal view, valueless.

The deed in blank passed no interest, for it had no grantee. The blank intended for the name of the grantee was never filled, and until filled the deed had no operation as a conveyance. It may be, and probably is, the law in Iowa, as it is in several States, that the grantor in a deed conveying real property, signed and acknowledged, with a blank for the name of the grantee, may authorize another party, by parol, to fill up the blank. Swartz v. Ballou, 47 Iowa, 188; Van Etta v. Evenson, 23 Wis. 33; Field v. Stagg, 52 Missouri 534. As said by this court in Drury v. Foster, 2 Wall. 24, at p. 33 :

"Although it was at one time doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument, the better opinion at this day is, that the power i sufficient."

But there are two conditions essential to make a deed thu

Opinion of the Court.

executed in blank operate as a conveyance of the property described in it; the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named. Allen, to whom it is stated the deed was handed, with authority to fill the blank and then deliver the deed, gave it to his wife without filling the blank, and she died with the blank unfilled.

The deed of Tracey to Withrow embraced real as well as personal property. It was for the purchase and sale of real property that the land company was formed, and by the terms of the contract of association all the property of the company remaining after payment of taxes, expenses, and advances, was to be deemed profits, and divided in kind or converted into money, and then distributed. Though the declaration of trust by Ebenezer Cook speaks of the interest of Tracey in the land company as an interest in its "profits," that term is used with reference to its meaning as declared in the contract of association, to which that declaration of trust refers, and to which it is annexed.

In the partition by the decree of the Circuit Court of the United States of the interest conveyed to Withrow, "lands, lots, notes, contracts, and mortgages" are specified as awarded and set apart to him. So far as the real property is concerned, no trust in relation to it could be established under the Statute of Frauds of Iowa in force when the deed of Tracey was signed, except by an instrument in writing executed in the same manner as a deed of conveyance. The language of the statute is, "declarations, or creations of trust, or powers in relation to real estate, must be executed in the same manner as deeds of conveyance, but this provision does not apply to trusts resulting from the operation or construction of law." The statute also enumerates, among the contracts in reference to which no evidence is competent unless it be in writing and signed by the party or his lawfully authorized agents, "those for the creation or transfer of any interest in lands, except leases for a time not exceeding one year."

So far as the personal property conveyed to Withrow is concerned, it must be admitted that a trust may be established by

VOL. CX-9

Opinion of the Court.

parol evidence; but such evidence must be clear and convincing, not doubtful, uncertain, and contradictory, as in this case. The evidence must consist of something more than loose conversations with third parties. The declarations of the grantor relied upon must be made at the time of his conveyance or whilst he retains an interest in the property, and be so connected with the conveyance as to justify the conclusion that it was made or is held in execution of the purposes declared. Declarations of a purpose to create a trust not carried out are of no value, nor are direct promises to that effect unaccompanied with considerations turning them into contracts.

The deed of November 16th was handed to Ransom to be delivered to Withrow without any declaration from Tracey as to the purpose for which it was made or the considerations by which it was supported. Nothing was said at that time which could change the absolute character of the instrument, nor is there any evidence of any declarations subsequently made, by parol or in writing, by the grantor with respect to that deed, except such as are found in the communication to Scott and the deed to him.

It does not affect the conclusion, therefore, whether we treat the whole property conveyed to Withrow as real or personal property, or as consisting of both. Real property owned by a partnership and purchased with partnership funds is, for the purpose of settling the debts of the partnership and distributing its effects, treated in equity as personal property. It matters not whether it be so treated here. In any view, no legal trust was created with respect to the property in favor of Mrs. Allen which she could have enforced had she been living, or which can now be enforced by her heirs-at-law.

Decree affirmed.

Syllabus.

BUSSEY & Another v. EXCELSIOR MANUFACTURING COMPANY.

EXCELSIOR MANUFACTURING COMPANY v. BUSSEY & Another.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

Argued January 8th, 1884.-Decided January 21st, 1884.

Patent.

The first four claims of reissued letters patent No. 3,815, granted to Esek Bussey and Charles A. McLeod, February 1st, 1870, for a " cooking-stove," the original patent, No. 56,686, having been granted to said Bussey, as inventor, July 24th, 1866, and reissued to him, as No. 3,649, September 28th, 1869, namely: "1. A diving-flue cooking stove with the exit-flue so constructed as to inclose on the sides and bottom the culinary boiler or hotwater reservoir B; 2. A diving-flue cooking-stove with the exit-flue constructed across the bottom and up the rear upright side of the culinary boiler or hot-water reservoir B ; 3. A diving-flue cooking-stove constructed with an exit passage, F, below the top the oven, and an exit-flue, E E', in combination 'with an uncased voir, B, attached to the rear of the stove, and placed just above such exit passage, and so arranged that the gases of combustion, in passing through such exit-flue, will impinge upon or come in direct contact with said reservoir, substantially as and for the purposes herein before specified; 4. An exit-passage, F, constructed in the rear of a diving-flue cooking stove and below the top of the oven, in combination with an uncased reservoir, B, attached to the rear of the stove, the bottom of which reservoir is also below the top of the oven, and so arranged that the gases of combustion will come in contact with, and heat such reservoir by, a direct draft from the fire-box to the smoke-pipe," are limited to a structure in which the front of the reservoir has no air space in front of it, and in which the exit-flue does not expand into a chamber at the bottom of the reservoir, and in which the vertical part of the exit-flue does not pass up through the reservoir. Hence, those claims are not infringed by a stove in which, although there are three flues, and an exit-passage below the top of the oven, and a reservoir the bottom of which is below the top of the oven, no part of the rear-end vertical plate is removed so as to allow the gases of combustion to come into direct contact with the front of the reservoir, nor is any such plate employed as the plate w w of the patent, but there is a dead air-space between the rear plate of the flue and the front of the reservoir, and the exitflue is not a narrow one, carried across the middle of the bottom of the

Opinion of the Court.

reservoir, as in the patent, but the products of combustion, on leaving the flue space, pass into a chamber beneath the reservoir, the area of which is co-extensive with the entire surface of the bottom of the reservoir, and the vertical passage out of such chamber is not one outside of the rear of the reservoir, but is one in and through the body of the reservoir, and removable with it.

The claim of letters patent No. 142,933, granted to David H. Nation and Ezekiel C. Little, as inventors, September 16th, 1873, for an "improvement in reservoir cooking-stoves," namely, "1. The combination, with the backplate I of the cooking-stove A, of the reservoir C, arranged on a support about midway between the top and bottom plates of the stove, and the airchamber b between the stove back and reservoir front, open at the top, and communicating with the air in the room, substantially as and for the purposes set forth; 2. The combination, with the stove A and reservoir, C, of the small opening a, the sheet-flue G under the entire bottom of the reservoir, and the small exit-passage or pipe E, all substantially as and for the purposes herein set forth,” are void for want of novelty.

The claims of letters patent No. 142,934, granted to said Nation and Little, September 16th, 1873, for an improvement in reservoir cooking-stoves,' namely, "1. The detachable base-pan or flue-shell D, attached to the body at a point near the centre of the back plate of the stove, by means of books a a cast on the base-pan, and pins b b on the stove body, substantially for the purposes herein set forth; 2. The portable reservoir F, with the flue E in the rear side, in combination with the portable base-pan or flue-shell D, substantially as and for the purposes herein set forth ; 3. The combination, with a three-flue stove having damper H arranged as described, of the portable base-pan or flue shell D and warming-closet G, all substantially as and for the purposes herein set forth," are void for want of novelty.

There was no invention, in claim 1, in using, to attach the base-pan, an old mode used in attaching other projecting parts of the stove.

Claims 2 and 3 are merely for aggregations of parts and not for patentable combinations.

Mr. Charles J. Hunt for Bussey & Another.

Mr. S. A. Duncan for Excelsior Manufacturing Company.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is a suit in equity brought in the Circuit Court of the United States for the Eastern District of Missouri, by Esek Bussey and Charles A. McLeod against the Excelsior Manufacturing Company of St. Louis, a corporation, for the infringement of three several letters patent, being (1) reissue No. 3,815, granted to the plaintiffs, February 1st, 1870, for a “cooking