| N.Y. Sup. Ct. | May 15, 1830
The judge, in permitting evi¿ence t0 pe given of the declarations of Albert Covenhoven when the defendant was not present, went further than any case that I have seen. The rule on this subject is, that when a person refers to another for an answer on a particular subject, the answer is in general evidence against him, since he makes such third person his accredited agent for the purpose of giving the answer. (Starkie’s Ev. pt. 4, p. 42.) But this rule cannot apply to this case ; for the declaration of the defendant that he would pay the interest to Mrs. Duval if his father so directed, authorized only evidence of directions given by his father upon such subject, and did not warrant-proof of declarations by the father that he had placed the property at Lysander in the hands of the defendant for the support or benefit of Mrs. Duval.
But this is not the only difficulty in this case. It is said that here is a resulting trust in favour of Mrs. t)uval. If her father gave her the money to buy the land, the money, when it was received by her, became eo instanli the property of her husband John Duval ; and the land being purchased with that money, and the deed taken in the name of William Du-val, the cestui que trust was John Duval, whose money had been paid. The facts in the ease shew, to my entire satisfaction, that the money was never paid to Mrs. D. nor did the right to it vest in her. It was the money of her father. He bought the land with a view to aid her, but not with the intention that the title should vest in her. If such was the case, the resulting trust was in favor of the father, whose money was paid for the land. If it was intended for her use, or to be held in trust for her, the statute of frauds requires that there should be a writing declaring the trust or use. (1 R. L. 79.) The land, it seems, was sold by the direction of A. Covenhoven, and the avails were to be dealt out to Mrs. Duval, according to her necessities, by the defendant, who was constituted the trustee of this fund by her father, A. Covenhoven. It was clearly his intention that his daughter should have the benefit of it, but that her husband should not have any control over it. All appealed to A. Covenhoven as having the disposition of this money, and the whole body
It is contended that the mortgage of William Duval to Albert Covenhoven was improperly excluded. The ground of that exclusion does not appear in the case, any further than is to be gathered from the copy of it and-the acknowledg ment; and all that is said about it by the counsel here is on the part of the plaintiff, that it was-not sufficiently proved, and on the part of the defendant, that it was rejected for the bad spelling. I think it was sufficiently proved, and by it and the assignment to the defendant it appeared that A. Covenhoven had parted with his title in 1822 ; it was improper, therefore, to shew, by his declarations made subsequent to that date, that the defendant held the land in trust. His declarations should not have been received' to contradict his deed.
It appears to me that the rights and claims of Mrs. D. can be properly settled only in a court of equity.
New trial granted.