29 N.J. Eq. 458 | New York Court of Chancery | 1878
The bill is filed for relief against a mortgage given by the complainants to the defendant on land conveyed by him to them, situated in Riverside, in the county of Burlington. The complainants allege that the defendant agreed to buy the mortgaged premises for the complainant Nestal, and as his agent; that he did so buy them for the price of $500 paid and secured to be paid by him; that he represented to Nestal that the owner would sell them for $1,000, but for no less; that Nestal then authorized him .to buy them for him at that price, and that they were conveyed under the agreement by the defendant to Nestal for the price of $1,000, of which $400 were paid in cash, and the balance secured by a mortgage on the premises, made by the complainants in favor of the defendant, and that the complainants have discovered that the price paid by the defendant for the property was only $500. The bill prays that the complainants may be permitted to redeem the mortgage by paying the amount which would be due to the defendant in an accounting on the basis of allowing him only what he paid for the property, and interest. The proof of the alleged agency rests entirely on the testimony of the complainants. It is denied by the answer, and by the defendant in his testimony. Indeed, all the rest of the evidence in the cause bearing on the subject disproves it. But, if it be admitted that the agency existed, that the defendant agreed with Nestal that he would buy the property for him, the suit cannot be maintained on the ground of agency, for it appears, and it is not disputed, that the money paid for the property was the money of the defendant, and he took the title in his own name. A trust in the property in favor of
Parol proof cannot be received to establish a resulting trust in lands purchaser! by an agent and paid for with his own funds, no money of the principal being used for the payments; for’ the relation of principal and agent depends upon the agreement existing between them, and the trust, in such a case, must arise from the agreement, and not from the transaction, and where a trust arises from an agreement, it is within the statute of frauds, and must be in writing. This rule is so inflexible that, though the agent may be indicted and convicted of perjury in denying his character as agent in his answer under oath, the court cannot decree and establish the trust. Perry on Trusts, § 185.
The gist of the complaint is, that the defendant offered and promised to sell the property to Nestal for just the same price which he paid for it. It is alleged that he professed to have no pecuniary interest in the sale, and to be acting merely for the advantage of Nestal, and that the moving consideration was his desire to have a good neighbor and a good baker in the village. Ho had become acquainted with Nestal merely casually. The latter was a baker, pursuing his business in Philadelphia. Some of his customers lived in Riverside, and he thus had his attention called to that place as a good one in which to establish himself in his business. With that view he went to Riverside, and, while looking at the property occupied by the baker of the village, which property adjoined that of the defendant, he was informed by the defendant that he could not buy that property of the owner, because it was soon to be sold under foreclosure of mortgage. The defendant, as the complainants say, offered to buy it at the sheriff’s sale for Nestal. lie did not buy it at the sheriff’s sale. It was purchased by the mortgagee, of whom the defendant bought it’ subsequently, at the price of $500. He then sold it to Nestal for $1,000, of which $50 were to be paid on the signing of the agreement of sale, $400 were to be paid on the
The scrivener who was employed by Nestal and Schmid to draw the second agreement, testifies that Nestal bought the property of Schmid; that. nothing was said about Schmid buying the property of a woman for Nestal, and that he heard nothing of any woman, or any other party. He says that Nestal gave as the reason for entering into the new agreement, that he was unable to raise the money to
The scrivener who was employed by Nestal to draw the deed and bond and mortgage, testifies that Nestal gave him the same reason for making the second agreement: that he had been disappointed in selling his property, and was therefore unable to obtain the money required to carry out the first agreement. He says Nestal told him he had bought the property of Schmid, aud said nothing of any woman in connection with the business, nor about Schmid having bought the property for him. He told Nestal that he (Nestal) had paid a great deal more for the property than Schmid paid, according to the consideration stated in the deed, and Nestal replied that he was aware of that, but was satisfied with his bargain.
The testimony of these witnesses, Messrs. Garbe and Walcott, in important respects contradicts that of Nestal. They have no interest in the suit, and appear to be entirely candid. Hr. Walcott, indeed, appears to have befriended Nestal by becoming his surety in a suit between him and Schmid in reference to the use and occupation of the property for the year previous to the delivery of the deed. Nestal v. Schmid, 10 Vr. 686. It appears that Nestal, notwithstanding the statement in the bill that, immediately after discovering the fraud that had been practiced on him, he placed the matter in the hands of counsel, never did, in fact, make any complaint of the alleged fraud. He says in his testimony that the reason he did not complain was that he did not know what to do, that he did not know that he could obtain redress by means of legal proceedings.
Apart from the consideration that the matters which have just been passed upon are not within the frame of the bill