23 N.Y.S. 1134 | N.Y. Sup. Ct. | 1893
This action was brought for the purpose of establishing a trust agreement, the setting aside of various conveyances of real estate from the defendant Mary Murphy and her sister to the defendants James W. Whitney and Aurelia W. Moore, and for an accounting, etc. The defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The complaint is very voluminous, and a detailed statement of the facts would fill many pages. We are asked to consider three questions, and the allegations upon which they are founded may be briefly stated. Hugh Murphy, the grandfather of the plaintiff, died at Le Roy, Genesee county, in the year 1826, possessed of the real estate in question, and leaving him surviving three sons and four daughters. Upon his death the seven children became tenants in common of such real estate. One of the sons, Joseph Merancy Murphy, was married about the year 1837, and the plaintiff is the issue of such marriage. None of the other children married. After they had reached their ma
It is claimed—First. That the alleged agreement is void under-the statute which provides that “the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the time of the creation of the estate.” 1 Rev. St. p. 723, § 15. Second. That the agreement is void, because not in writing. 2 Rev. St. p. 134, § 6. Third. That the plaintiff" has not such an interest in the real estate as will authorize him to maintain this action.
The first .two questions we shall consider together, and shall assume for the purposes of this case that the agreement, in so-far as it remains wholly unexecuted, is void under the provisions, of the statutes referred to. The agreement remains unexecuted so far as the defendant Mary Murphy is concerned. She, as a ten-
. “It is well settled that courts of equity will enforce a specific performance •of a contract within the statute when the paroi agreement has been partly carried into execution. 2 Story, Eq. Jur. § 759. And the distinct ground upon which courts of equity interfere in cases of this sort is that otherwise one party would be enabled to practice a fraud upon the other, and it could never be the intention of the statute to enable any party to commit such a fraud with impunity. Indeed, fraud in all cases constitutes an answer to the most solemn acts and conveyances, and the objects of the statute are promoted, instead of being obstructed, by such jurisdiction for discovery and relief. And when one party has executed his part of the agreement, in the confidence that the other party would do the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to suffer his •refusal to work to his prejudice.” °
In Wood v. Rabe, 96 N. Y. 414, 422, Andrews, J., says:
“But there is a large class of so-called ‘constructive trusts,’ or trusts ex maleficio, where courts of equity treat the holder of the legal title to land as a trustee, and, through the medium of an assumed trust, makes that title subservient to the circumvention of fraud and attainment of justice. Trusts •of this character are not, I assume, within the exception in the statute.”
See, also, Moyer v. Moyer, 21 Hun, 67.
Has the plaintiff such an interest as to enable him to maintain the action? It is alleged, as we have seen, that the defendant Mary Murphy has conveyed away all of the farm. By this act ■she has put it beyond her power to perform the agreement. If, as we have seen, she held six-sevenths of the real estate in trust •under an agreement to devise, or to permit it to descend under the