10 Paige Ch. 562 | New York Court of Chancery | 1844
There is no allegation in the bill that the defendant ever gave to Ford a conveyance of his interest in the undivided half of the premises, to which the defendant acquired the legal title by the purchase under the statute foreclosure. The evidence of the declarations of Ford as to the pretended quit claim deed must therefore be laid entirely out of the question, even if they could have been legal evidence against the defendant upon any state of pleadings. Besides, if an allegation of that kind had been contained in the bill, it would have rendered it demurrable ; upon the ground that the remedy of the complainant, if any, was at law, by an ejectment suit to recover the possession of the undivided half of the premises claimed by the defendant.
The question then arises, admitting the allegations in the complainant’s bill to be true, whether Ford had such an interest in the half of the premises which was struck off to the defendant, upon the statute foreclosure, as to render it liable to a sale by the sheriff upon execution, and to a redemption by a junior judgment creditor. Previous to the revised statutes if a person purchased real estate and paid for it with his own means, and took a conveyance of the legal title in the name of another, there was, in equity, a resulting trust in favor of the one who paid the money ; except where it satisfactorily appeared that the purchase was intended as a gift or advancement to the person in whose name the conveyance of the legal title was taken. But such an equitable interest in land, where the legal title was in the person in whose name the conveyance was taken, could not be sold by the sheriff, upon execution against the cestui que trust, previous to the statute 29th Charles 2d, chapter 2d, § 10 ; which statute was adopted as a part of the law of this state, and continued in force here until the revised statutes went into effect, on the 1st of January, 1830. (See 1 R. L. of 1813, p. 74, § 4.) By that statute,
The revised statutes, however, made an entire change in the law on this subject. By the 51st section of the article of the revised statutes relative to uses and trusts, it is provided that where a grant for a valuable consideration shall be made to one person and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made ; but the title shall vest in the person named as alienee in such conveyance, subject only to the provisions in the next section. (1 R. S. 728.) And the next section declares the-conveyance to be presumptively fraudulent only as against persons who were at that time creditors of the person paying the consideration ■ but not as against creditors whose debts were subsequently contracted. Here the legal title to one half of the lot in controversy passed to the defendant, by the purchase under the statute- foreclosure, on the 14th of January, 1831. For by the 14th section of the article of the revised statutes relative to the foreclosure of mortgages by advertisement, (2 R. S. 547,) where the mortgaged premises are purchased at the sale by the mortgagee, or his assigns, the affidavits of the publication and of affixing the notice of sale, and of the circumstances of such sale, are not merely evidence of the regularity of the foreclosure ; but they are, without the formality of a conveyance, to have the same effect as a conveyance executed by a mortgagee to a third person upon such a sale would have had. No parol evidence, therefore, can be received to establish either án express or an implied trust as to this half of the premises, in
The revised statutes having provided for a resulting trust in favor of creditors, whose debts are then existing, where the consideration for real property is paid by their debtor and the title is taken in the name of a third party in fraud of their rights, I am not prepared to say that a judgment for such a debt would not create a preferable lien in equity upon such real property, except as against a purchaser for a valuable consideration without notice, although such property cannot be sold upon execution on the judgment. (See Forth v. The Duke of Norfolk, 4 Mad. Rep. 504. Lynch v. The Utica Insurance Company, 18 Wend. Rep. 236.) But there can be no pretence in this case that there was a resulting trust, either in favor of the judgment credi
No title whatever in this half of the lot, either legal or equitable, passed to the original complainant in this suit by virtue of the redemption and the deed of the sheriff. But he merely got—what W. Power professed to purchase at the sheriff’s sale—the undivided half of the lot which belonged to Ford the judgment debtor. And as to that half, I have no doubt he got the title divested of any claim in favor of the defendant, on account of the Smith note, whether the amount of that note was or was not included in the judgment given by Ford to his three brothers-in-law.
This would of itself be sufficient to sustain the decree of the vice chancellor dismissing the bill. For the complainant comes into this court for relief upon the sole ground that he acquired an equitable interest in the defendant’s half of the property by virtue of the sale and the sheriff’s deed ; and he has not framed his bill in such a manner as to be entitled to ask for relief upon any other ground. But I cannot dismiss the case without expressing my opinion also, that the complainant has failed in showing that it was
The decree appealed from must be affirmed with costs.