35 N.J. Eq. 49 | New York Court of Chancery | 1882
The parties to this suit were married on the 1st of June, 1858, in the state of New York. They lived together in Tarrytown, in that state, until the 1st of April, 1862, when they removed to the city of Newark, in this state, where they have lived ever since, with the exception of from six to nine months, in 1868, when they resided in Brooklyn, in New York. There were two children of the marriage, a son and daughter, the former now about twenty-two years of age, and the latter about nineteen. By the decree of this court, the husband and wife were, in November, 1879, divorced from the bond of matrimony, for the adultery of the latter. Since that time she has married the person with whom the adultery was proved to have been committed. In March, 1870, the complainant bought a lot of land in Nichols
The deeds to the defendant express no trust, nor is there any written evidence of any. The complainant claims that a trust resulted in his favor from the payment of the purchase-money by him. When a man purchases land and causes it to be conveyed to his wife, the presumption is, that it is a settlement upon her, but it is a question of intention, and the presumption may be rebutted. The burden of proof is upon him. The bill, indeed, states, and the complainant testifies, that in placing the title to the property in the name of his wife, he acted upon the
“It is the clear result of the authorities that where a person, a stranger in. blood to the donor, and a fortiori if connected witli him in blood, is in possession of an estate under a voluntary conveyance duly executed, the mere fact of his being a volunteer will not of itself create any presumption that he is a trustee for the grantor; but he will be considered entitled to the enjoyment of the beneficial interest, unless (hat title is displaced by sufficient evidence of an intention on the part of the donor to create a trust; and he need not bring proofs to keep his estate, but the plaintiff must bring proofs to take it from, him.” Hill on Trustees 170.
Again, it should be remarked, the trust which the complainant endeavors to establish is one which was for the benefit of the defendant herself as well as of himself and their children. The complainant relies upon his own testimony as to what was his intention — not as to what was his declared intention at the time of or antecedently to the transactions, but what he now says was his intention at that time. Such testimony was admitted and prevailed in Devoy v. Devoy, 3 Sm. & Giff. 403, and the decision in that case was followed in Stone v. Stone, 3 Jur. (N. S.) 708, and Mr. Perry, in his work on Trusts, lays it down .on the authority of those eases, that the real purchaser, if otherwise competent, may be a witness to state what his objects, purposes and intentions were in taking the title in the name of his wife or child. Perry on Trusts § 147. On the other hand, it is said by Mr. Lewin, that where a father buys and puts the title in his son, he may prove a parol declaration of trust by himself, either before or at the time of the purchase; not that it operates by way of declaration of trust (for the statute of frauds would interfere to prevent it), but as the trust would result to the father were it
Nor can any relief be granted on the ground that the defendant has been guilty of adultery, and the complainant has been divorced from her for that cause. In this connection, it is urged
It is urged that, at all events, the complainant is entitled to consideration on the ground that he has a right to curtesy in the property. But if the marriage had not been dissolved he would have no tenancy by the curtesy initiate, and none at all in the property, unless his wife should own it at her death. If the divorce has not destroyed all his claim to curtesy in any event, the possibility that she will own the property at her death, would be no ground for equitable relief. The bill will be dismissed, but without costs.