Foote v. Foote

| N.Y. Sup. Ct. | Jul 5, 1870

By the Court, Potter, J.

George L. Foote, by agreement, held the premises in question, without having paid any consideration therefor, for the benefit of the plaintiff, the plaintiff originally having paid, mainly, all the consideration that had ever been paid therefor—that is, by paying a mortgage that had been thereon. There are no creditors whose rights are involved in the case. The defendants can claim no better title than George L. Foote held to the premises.

The defendants now claim that George L. Foote, at the time of his death, was the lawful owner of the said premises, and that upon his death, the defendant Emily E. Foote, his widow, became entitled to an estate in dower therein, and the defendant Carrie B. Foote to an estate, in the remainder in fee. In pursuance of the agreement by which George L. Foote held the title, the plaintiff has been for twenty years in the uninterrupted and undisputed possession of the premises, exercising acts of ownership over it, and paying the taxes thereon. And during that time she was recognized as the owner thereof, by George L. Foote; he claiming to hold the title simply for her benefit. In confirmation of this agreement, and of the right of property in the plaintiff, and to secure the title to the plaintiff, which he so nominally held, Geo. L. Foote, before his death, and as it happens, also, before his marriage, made his last will and testament, devising the said premises to his mother, the plaintiff. Had George, at any time during his life, attempted to dispossess the plaintiff of the estate he so held nominally for her benefit, a court of equity would have restrained him, upon application, and upon demand, have compelled him to convey the title to her. His attempt to do so would have been an attempt to commit a fraud upon his cestui que trust, which a court of equity would not allow. His widow, and his heir at law, occupy no better status in court than their intestate would have done, if living.

This is the rule of law as well as of equity, independent of any embarrassments arising from the statute in relation to trusts. It must be remembered that the plaintiff was not the immediate grantor of George L. Foote, nor does it appear that the conveyance to him was intended as an evasion of law, or for an obj eet against public policy. There was no consideration paid by George, nor any received by the grantors, his brothers Oscar and Sherman Foote,’ from anybody. It cannot, therefore, be said that there was any valuable consideration passing between the parties, though the sum of $400 was named in the deed. It was simply the naked transfer of the nominal title of this property to be held by George, without interest in him, for the benefit of his mother, the plaintiff. This was such a title that a judgment against George could not fasten upon it as an effective lien. (Siemon v. Schurck, 29 N. Y. 598.)

The statute by which this trust is claimed to be void is 2 Revised Statutes, (marg. p. 134, 135, § 6,) which requires that every estate or interest in lands, or' any trust or power over or concerning lands, shall be by deed or memorandum in writing, to be subscribed by the party creating, granting, assigning, surrendering or declaring the same. But the 7th section of the same statute declares that the preceding 6th section shall not prevent any'trust from arising by implication or operation of law. The 6th section has, therefore, no application to the case in question.

But by the statute of “uses and trusts,” implied and resulting trusts are not included in, or affected by, the provisions of that article; it does not extend to them. (1 R. S. 728, § 50.) They are, and must necessarily be, excluded, from their very nature. (Astor v. L'Amoreux, 4 Sandf. 524, 529.) Their existence, generally speaking, can only be established by parol evidence; and it requires the power of a court of equity to compel the performance of such implied agreements, and, to protect the rights and interests of the cestui que trust therein. This power has in no respect been abridged or impaired by the Revised Statutes. It is an established rule of equity, that where trust and confidence are reposed by one party in another, and such, other accepts the confidence or trust, equity will convert him into a trustee, whenever it is necessary to protect the interest of the party so confiding, and do justice between them.

"We cannot doubt, if we advert to the circumstances under which George L. Foote took the conveyance of this property, viz : the habits of the father—the industry, the means possessed by the mother—and the desire of the whole family to place the title where "it could be preserved from being squandered or lost—his paying no consideration therefor—declaring, for a period of twenty years, that he held it for the benefit of his mother—allowing her all that time to enjoy its use, to pay its taxes—calling it her property—making his will and devising it to her; I say we cannot doubt that he intended in good faith to hold it in trust, as the protector of her rights, and only for her benefit. If this is the fair conclusion from the facts, this being the conclusion of fact of the referee, we cannot now permit those who claim under him to insist that he, George L. Foote, held it absolutely as the true and lawful owner.

If we are right in the views we have taken of this case, it is no objection that there was no written agreement between George L. Foote and his mother, the plaintiff. The law of equity makes him a trustee ex maleficio. (Ryan v. Dox, 34 N. Y. 307.) The defendants can interpose no defense of the statute of uses, or the statute of frauds, that their predecessor in the title could not set up. It would be fraudulent in him to deny his mother’s equitable title to this property; and a court of equity would not allow him to set up either of those statutes to be used as instruments of fraud. (Ryan v. Dox, supra.)

The various objections to parol proof of this trust, and exceptions taken to their admission, were not well taken. The objection taken to the testimony of Oscar Foote, on the ground that he was an assignee of the property in question—however good it might be if standing alone—is not sufficient cause for reversing the judgment. The fact testified to by him was abundantly proved by other witnesses, and there was no controversy about the facts, and no conflict requiring facts to be. weighed. The defendants offered no evidence.

[Third Department General Term, at Plattsburgh, July 5, 1870.

The judgement should be affirmed, with costs.

Miller, P. J,, and Potter and Parker, Justices.]