11 N.Y.S. 938 | N.Y. Sup. Ct. | 1890
Lead Opinion
Margaret Curtin held a life-estate in a piece of real property in Brooklyn, under the will of her husband. There was a mortgage upon it which was foreclosed, and a sale made under the decree. At the sale the plaintiff procured the title to be taken from the referee to Carrie F. Curtin, defendant’s wife, and the plaintiff paid the consideration. Carrie F. Curtin was not present at the sale, and had no knowledge that the title was taken in her name. She subsequently discovered this fact, and conveyed the property to her husband, William H. Curtin, who had knowledge of all the facts. The question is whether the plaintiff can get the land.. The plaintiff and the defendant William H. Curtin are brothers, sons of Margaret Curtin and of her deceased husband, under whose will the life-estate was devised to her. They are also both executors of his will. The statute under which the de
Dykman, J„ concurs.
Dissenting Opinion
(dissenting.) This case comes squarely under the statute forbidding resulting trusts. 1 Rev. St. p. 728, § 51. The plaintiff paid for the land, and directed it to be struck off, and that a deed be delivered to Mrs. Curtin. Such deed was delivered to and accepted by her, and she afterwards deeded the property to the defendant W. H. Curtin; the latter therefore became, and is now, the absolute owner of the premises. So far as appeared, the plaintiff had no interest in the property at the time of the purchase and sale, and Mrs. Curtin had never assumed to bid at the sale, or to take title as against the plaintiff. Whatever may be said of the morality of this transaction, it is clear in law that this action cannot be maintained. Neither of the defendants were guilty of any fraud in procuring the deed from the referee, nor does it appear that any agreement even was made for a reconveyance to the plaintiff. Judgment affirmed, but without costs.