11 Barb. 490 | N.Y. Sup. Ct. | 1851
The facts established upon the trial of this action, disclose a design on the part of the defendant to appropriate a dwelling house and three acres of land, situate in the town of Ossening, in the county of Westchester, purchased for the plaintiff and with her means, to the payment of a debt due to him from one Clements Quereau, and another debt due from Quereau to one Samuel L. Mott. This, I think, he can not be suffered to do ; for unless I am mistaken, the law is armed with sufficient power to prevent so flagrant an act of injustice. He can not be regarded as a creditor without notice, nor as a bona fide purchaser, for the jury affirm by their verdict, which is entirely in accordance with the evidence, that he was cognizant of the objects and purposes for which the house and lot were purchased ; that the consideration was paid with the plaintiff’s own money, and that Quereau was to take and hold the title for her use and benefit. He had notice also at the time of the sheriff’s sale, that she claimed the property under the deed and declaration of trust, executed by Quereau to her. The proof upon the trial was, that the defendant negotiated the purchase of the
The lien of a judgment does not, in equity, attach upon the mere legal title to lands existing in the defendant, when the equitable title is in another person. And if a purchaser under the judgment has notice of the equitable title, before the purchase and the actual payment of the purchase money, he can not protect himself as a bona fide purchaser. (Ells v. Tousey, 1 Paige, 280. Northrup v. Metcalf and others, 11 Id. 570. Averill v. Loucks, 6 Barb. S. C. R. 19.) The defendant insists that the case falls within that provision of the statute of frauds declaring that trusts or powers over or concerning lands, shall not be created unless by act or operation of law, or by deed or conveyance in writing. (2 R. S. 69, § 6.) It must be remembered, however, that the plaintiff has had the actual possession of the premises since the execution of the deed to Quereau, claiming the beneficial interest therein, and that she paid the whole of the purchase money. I think it will presently appear, notwithstanding the form of the deed, that a trust does arise by act and operation of law.
The jury also affirm by their verdict, that Quereau, the judgment debtor, purchased the premises under a parol agreement to hold them in trust for the use and benefit of the plaintiff. The proof shows the nature of, and the reasons for entering- into this parol agreement. She was a married woman and about to receive certain moneys from the estates of her father and grandfather, which she intended should be applied to the purchase of a house and a small piece of land, as a home for herself and family, her husband being unable, in consequence of pecuniary embarrassments, to provide a suitable and permanent residence for her. The house and lot in question were purchased by the defendant and Quereau, who acted as her friends and advisers, to carry into effect this intention ; and the parol agreement was that the latter should take the deed as her trustee and hold the property for her use and benefit. She seems to have reposed the most entire confidence in their honesty, as well as in their knowledge and ability, to make the purchase and take such a
The trust was certainly not created by deed or conveyance in writing, and it remains to be seen whether it may not have been created by implication or operation of law, within the meaning of the sixth and seventh sections of the act concerning “ fraudulent conveyances and contracts relative to lands.” (2 R. S. 69.) Uses and trusts, except as authorized and modified in art. 2, tit. 2, chap. 1, part 2, of the revised statutes, are abolished. A trust like that contemplated by the parties in this action, to wit, that Quereau should hold the estate for the use and benefit of the plaintiff, is not one of those enumerated in the 55th section, and is not therefore one of the express trusts recognized by the statute. Had the deed given expression to the intention of the parties, by a limitation of the estate to the use of Catherine Lounsbury and her heirs, no trust would have been created. Quereau, however, would not have taken the estate, and the lien of the judgments would not have at
But the defendant insists that the grant being made to Quereau, although the consideration money was paid by the plaintiff, it falls within the provisions of the 51st section, which declares that in such case “ no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance,” subject to the claims of the creditors of the person paying the consideration money, and a trust shall result in favor of them to the extent that may be necessary to satisfy their just demands. The present case, however, is saved by the qualification contained in section 58, which is, that the provisions of the 51st section, “ shall not extend to eases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the consent or knowledge of the person paying the consideration, or when such alienee, in violation of some trust shall have purchased the land so conveyed, with moneys belonging to another person.” These are the trusts arising by implication or operation of law, referred
Brown, Justice.]
Judgment must be entered that the defendant release to the plaintiff his interest in the premises, and that he be enjoined from setting up any claim thereto under the sheriff’s sale, or either of the judgments referred to in the plaintiff’s complaint, and that the plaintiff recover her costs.