Guthrie v. Gardner

19 Wend. 414 | N.Y. Sup. Ct. | 1838

By the Court,

Nelson, Ch. J.

It is a general rule that if an estate be purchased in the name of one person, and the price paid with money belonging to another, it will be subject to a trust for him by whom the money was advanced, even without a declaration to that effect. Such resulting interest may be sold on execution and the legal title thereby transferred to the purchaser by virtue of the 29 Car. 2, c. 3, of which the 4th § of our statute of uses is a copy. 1 R. L. 74. Watson on Sheriffs, 209. 3 Johns. R. 216. 17. id. 356.

If the money be advanced by the father and the conveyance taken in the name of a child; or by a husband, and taken in the name of the wife, in each case it will in the first instance be deemed an advancement to them and not a resulting trust; subject, however, to explanation. 1 Cruise, 477, § 43, tit. Trusts. 2 Fonbl. c. 5, p. 121, 125. 11 Johns. R. 96. 1 Swanst. 13. 10 Vesey, 367. 2 Mad. Ch. 116, 119. Sugden on Vendors, 621. The last author remarks, p. 627, “ but if a purchase in the name of the wife or child be after marriage and voluntary, it may perhaps be fraudulent as against creditors, in like manner as if the settlement was of property actually vested in the husband.” It has, however, he sáys, been strenuously argued that a purchase is not with--n t^e 0perat¡0n 0f ifoe statute of 13 Eliz. ; for as the purchaser may give the money to the object of his bounty to purchase the estate for himself, he may by the same reason direct a conveyance to be made to him; and this seems to be the better opinion where the ease is clear of actual fraud. It was admitted in the case of Christ's Hospital v. Bridgen and wife, that mortgages taken in the joint name of husband and wife, for moneys loaned by the former in his lifetime, and which were claimed by the latter as survivor, might be deemed fraudulent in the case of creditors, and for a very strong ground urged by the counsel, to wit, that if they were not thus void, the husband by joining his wife in the securities, would be always enabled to defraud all his creditors. 2 Vern. 683. Id. 490, and note. 1 Ves. sen. 130. All the cases concur, that- the presumption in favor of & provision for the wife, where the deed is taken in her name, may be rebutted by the contemporaneous circumstances. 2 Mad. Ch. 116, and cases there cited. 1 Swant. 17..

Now it is perfectly clear from the facts in this case, that the husband had no such bona fide intent as simply to make a provision but on the contrary, avowed his purpose to be, to keep the property from his creditors ; he directed the grantor to make the conveyance to his wife ; said that he was in debt, and wanted to secure the estate for the benefit of his family. The account upon which this judgment was subsequently obtained was then running against him. To hold this an advancement, under the circumstances, would open a way through which the grossest frauds might be practised upon creditors with impunity.

It is true, to pronounce the deed void under the statute of frauds, would be an unavailing judgment for the plaintiff in this court: it would not operate to vest the title in him, and were this the only view of the case, the creditors in these cases would be under the necessity of resorting to a court of equity in order to obtain possession of the fund. But assuming the idea of a provision for the wife to be sufficiently rebutted upon the circumstances, then a resulting trust arose to the husband, and the fee passed under the sale to the purchaser. This seems to be the necessary consequence of such explanation; for the general rule then operates, the same as if the conveyance had been~taken in the name of a stranger.

Judgment reversed; venire de novo; costs to abide the event.