45 N.Y.S. 758 | N.Y. Sup. Ct. | 1897
At common law there would be a resultant trust in favor of the plaintiff, from the fact alone that he paid the purchase money. But such resultant trusts were abolished by the Revised Statutes. 1 R. S. 128, §§ 51 and 52. No use or trust now results in favor of the person paying the purchase money, but causing the conveyance to be made to another. There being, therefore, no trust from the fact of such payment by the plaintiff, it was for him to prove the trust. That could only be in writing, by the Statute of Frauds. § 6. The oral evidence was received, but was incompetent to prove it. A way to prevent such a fraud as this case presents from being practiced under the very nose of the law would be welcome, but I find none.
The case is different in respect of the mortgages. The defendant permitted the plaintiff to pay them off upon the faith of the oral agreement that the property was his, and held for him. To repudiate such agreement in that respect is a fraud; and the prevention of fraud is a principal ground for relief in equity. The trouble about the breach of trust or fraud in respect of the ownership, is that the Statute of Frauds stands in the way of proving it. There is no such difficulty in respect of the subsequent payments of the mortgages, as no interest or estate in or trust concerning real estate is established in proving the oral agreement under which such payments were made; and the Statute of Frauds therefore does not apply.
Let the plaintiff be subrogated to the ownership of the mortgages which he paid, and let them be liens in his hands.
Ordered accordingly.