100 N.Y.S. 641 | N.Y. App. Div. | 1906
The plaintiff is armed with the legal title, and the judgment in her favor in this ejectment suit must be affirmed, unless the equitable title, js in the defendant. The-proof shows that on October’ 31, 1882, one Michael Dalton paid $800 for two parcels of land, including the one in question, and with full knowledge took a conveyance to this plaintiff, his niece, who subsequently learned of it; that the plaintiff on or about October 25, 1883, in the presence of. said Dalton, executed a deed of the premises, blank as to grantees, and on the following day her bond for $2,000, secured by a mortgage on the premises, upon which the sum of $2,000 was borrowed and used by Dalton to improve the property; that said blank deed remained unchanged in Dalton’s possession until his death, when it passed into the possession of his widow, and upon her death into that of the defendant; that Dalton occupied the property and had the beneficial usé of it until his death in 1892, whereupon'his widow, his sole devísete, succeeded to such possession and use until her death in 1894, when the defendant took possession, claiming as her residuary devisee; that the plaintiff never asserted her title or right to possession until shortly before .the commencement of this action. While Dalton had uninterrupted possession, it does not appear that he ever claimed it under an equitable title or in hostility to the plaintiff’s title; neither his will nor that of his widow specifically refers to this property.
Conceding for the moment that the legal title should yield to the intention'of the parties, I am utterly unable to understand how such intention can he- demonstrated from this record, and surely nothing: short of a demonstration will suffice to overthrow the legal title. If it were clear that the parties intended a trust, and to my mind other hypotheses are equally warranted, how are we know its. duration ? To be sure, the plaintiff was silent eight years after the death of her aunt, and it may be assumed that, the defendant’s possession was under a claim of title adverse to hers; it may .also be assumed that she made the statement attributed to her by the defendant’s counsel upon the occasion of his requesting her to execute a deed, but the statute (Code Civ. Proc. § 369 et seq.) has fixed twenty years as the period required for an adverse possession to ripen into a title, and it seems to me that this statute sufficiently assures repose of titles without the intervention- of equity, particularly when the basis of such intervention is the silence and -equivocal’ statements of a woman probably ignorant of her rights.
I understand it to be conceded that had the plaintiff orally agreed subsequent to the. conveyance from Bliss, and we have seen there could have1 been no prior agreement, to hold the property in trust, such agreement would be void as within the Statute of Frauda and would furnish no basis for equitable interference, because though equitable doctrines are flexible when dealing with cases, of fraud, the breach of. a void agreement is a moral and not a legal fraud (Wheeler v. Reynolds, 66 N. Y. 227, 234; levy v. Brush, 45 id. 589); but it is urged that, as the plaintiff has. committed neither moral nor legal fraud, a court of equity may.interpose and upon facts thought to be sufficient to satisfy its Conscience impress a trust upon her legal title; The authorities relied upon in support
I am unwilling to Vote to overthrow the legal title upon the evidence in this case, but I think that too large a sum was awarded as damages, and that the judgment should be modified in this respect. The plaintiff was entitled to recover as damages “ the rents' and profits or the value of the use and occupation of the real property - recovered, for a term not exceeding six years.” (Code Civ. Proc. § 1531.) The six-year period is to be computed with reference to the time of the commencement of the'action, so that the plaintiff may recover for six years before the - commencement óf the action and also during its pepdency. (Willis v. McKinnon, 178 N. Y. 451.) The summons was served on the defendant' McDonnell' on September 13,1902. It was served on other defendants; who were tenants, July 2, 1902, but, ás such defendants were not united in - interest with the .defendant McDonnell, we think the action was not commenced against him until the service of summons upon him. Upon the proof in. this case, that • date would certainly be. regarded as the date of the commencement of an.action against him in determining whether the Statute of Limitations had run (Code Civ. Proc. § 398), and we' see no reason why the same date should not be adopted in computing the damages provided by said- section 1531. In this respect the. court erred by adopting the earlier .date.
One witness for the plaintiff testified that the valuez of the use and. occupation of the premises was $360 a year; .a witness for the defendant testified that the rental value was $360 a . year. ' We think it plain from the surrounding, circumstances that both witnesses were referring to. gross rental value, and not to the value of the use and occupation. It. appeared without-dispute- that the total receipts from the property during "the period- for which damages were allowed were $2,472, and it is hot claimed that the property was negligently managed, nor was any attempt made' to question
Hirschberg, P. J., Woodward and Rich, JJ., concurred ; Jenks, J., read for reversal. .
• I dissent and vote for a reversal and a new trial. Our statute ' that abolishes a trust arising upon proof of the payment of the consideration was aimed, only at the commón-law trust which resulted from.the fact of such, payment. (Carr v. Carr, 52 N, Y. 260 ; Woerz v. Rademacher, 120 id. 67.) -Resulting trusts are not prohibited by our statute, but are well recognized. ( Western Union -Tel. Co. v. Shepard, 169 N. Y. 170,182.) “Resulting trusts arise ' where the legal estate is disposed of or acquired, not fraudulently, or in the violation of any fiduciary duty, but the intent in theory of equity appears or is inferred or assumed from the terms of the disposition or from the accompanying facts and circumstances that the beneficial interest is not to go with the legal title.” (Pom. Eq. Juris. [3d ed.] § 155.) Such á trust may be established by parol evidence. (Foote v. Bryant, 47 N. Y. 544.) In the language of Church, Oh. J., in that case : It arises, “ not upon the verbal arrangements, but upon the facts.” (Sée, too, Wood v. Rade, 96 N. Y. 414; Fowler Real Prop. Law [2d ed.], 657, citing authorities.) Professor Reeves, in his -work on Real Property (§ 360, note a), after an exhaustive review of the subject, states his conclusion, which seems to me cogent and
The plaintiff was the unmarried niece of him who paid the entire consideration. She lived in 1ns city and on- friendly terms with him. Mo presumption of advancement arose from their relationship. (Perry on Trusts [5th ed.], § 144, and authorities cited ; Beach Mod. Eq. Juris. § 221 .j. The only deed produced was evidently returned to her uncle after record and had always been in his possession or in that of those succeeding him, or under his control. Shortly -after she learned of the conveyance the plaintiff executed and delivered to her uncle a deed of conveyance in blank without receiving any consideration therefor and fully understanding the possible effect thereof. This deed always remained in his possession, and there is no proof that the plaintiff ever sought to recover it, to abrogate it or to do anything which in any way, so far as she was concerned, weakened or sought to weaken its potentiality. Upon the next day she mortgaged the property and instantly turned over the proceeds to her uncle. He improved it at large outlay in excess of those proceeds. He lived in the house built thereon and used other parts of the premises as improved fo.r his. business. She never gave the property any concern ; she never was consulted.
Judgment reversed and new trial granted, costs to abide the event, unless the plaintiff stipulate within twenty days to reduce the recovery to the sum of $1,192.32, in which event the judgment as thus modified is affirmed," without costs of this appeal to either party.
See 1 R S. 738, § 55, as amd. by Laws of 1830, chap. 330, § 10, and revised in Real Prop. Law, § 76.— [Rep.