28 N.Y.S. 258 | N.Y. Sup. Ct. | 1893
I think I must hold that there was, as between the husband and wife, no gift or transfer of the title to the $700 pension money, or the property purchased with it,—the lot and labor and materials put into the house. The business was very strangely done. From the first, the transaction had the appearance of a gift or transfer. The deposit of the money, the taking of the deed, the giving of the mortgage and bond, all in the name of the wife, with the knowledge and without objection of the husband, would lead naturally to the conclusion of a gift and transfer. If these parties had been interested in.having the title in the wife, and they had supplemented their outward indication of a gift and transfer with their real evidence of intention, there would have been no answer to the claim of a gift and transfer. Their evidence here is, however, that no gift or transfer was intended, but the money and property were all along regarded by them as plaintiff’s property —as between themselves on the face of their evidence; and considering the nature of the fund, and the strong equity in preserving that fund for the soldier himself, so as to be covered by the exemption provided by law, I do not like to hold a gift and transfer to the wife took place. She may have desired herself to get the property into her own hands, so as to preserve it as a home, but I do not like to find that he assented to a gift or transfer. So far as innocent parties dealt with her, supposing and believing she was the owner, they should be protected; but, as between the husband and wife, themselves, I must hold he has all along been the owner
In view of these considerations, I must hold the mortgage and liens upon this property, so far as the exemption is concerned, are valid liens upon the property, subject to the lien for the $700 purchase money. The plaintiff and his wife have put nothing into this property except this $700 of pension money. They are very likely liable upon the bond at law, but. no money has been paid over by them except the .$700. Whatever else has been expended on and about the place has been expended by McNulty, and advanced in money, labor, and materials by the assignor of the mortgage, and the holders of liens. This action is equitable in its nature, the plaintiff asking that equity be done him. It is a rule in equity that he who asks equity must do equity. It would not be equitable to permit the plaintiff to have a property, valuable over and above the moneys he has put into this place, and refuse to pay for the money, labor, and materials others have put into it. There is no reason why the mortgage or liens should be set aside because the mortgage was given by and the lien filed against the wife. As the owner of the property, at law she was, and still is, the owner taking and still holding the legal title. The mortgage and liens are good notwithstanding the equitable title is now held to be in the plaintiff. They cannot be set aside for this reason. All their rights, however, are under McNulty and his contract to build the house. The mortgage in Goodale’s hands is no better than if it were in the hands of McNulty. It is subject to any equities in favor of plaintiff against McNulty, and the liens can, in any event, be enforced only as to any amount still owung to McNulty under the contract. We are therefore brought back to a consideration of the contract relation between McNulty and the plaintiff personally, or as represented by his wife. Great difficulty arises here in determining what the particular terms of the contract were. These contracts ought always to be in writing, and then enough difference and disagreements arise. It is unfortunate that- all the details of the work should rest in conversations and negotiations, where mistakes so