80 N.Y. 538 | NY | 1880
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *540 The order appealed from does not show that the new trial was granted upon a question of fact, and the contrary must be presumed. (Code of Civil Procedure, §§ 1337, 1338.) Nor are we to consider the weight of evidence produced upon the trial by the respective parties, but whether there is any which would support the findings of the referee. An examination of the record satisfies me that there is, and as the conclusion of the General Term does not seem to have been otherwise, it cannot be necessary to re-state here the testimony on which, as I think, the findings may stand. Do these findings support the conclusion of law *542 upon which the decision of the referee depends? The referee finds that Elizabeth Barbara Reitz, "during her life-time, and until her death, entrusted the defendant, as her agent, with her business and with the settlement of the estate of her husband. That as her agent he received moneys belonging to her, with which he purchased certain lots for her, but took the title thereto in his own name; that he afterwards, with the consent of said Elizabeth Barbara, and the plaintiff, erected upon said lots four certain buildings, and received rent therefor, as alleged in the complaint" (that is, as her agent); "that the interest of said Elizabeth Barbara in said lots has descended to the plaintiff and defendant in equal terms;" that the defendant holds "the title to said lots for the equal use and benefit of himself and the plaintiff; and as conclusion of law the referee directs that he render an account of all moneys and effects that have come to his hands as the agent of the said Elizabeth Barbara during her life-time, and of all the rents which have come to his hands since her death." The decision of the referee has been set aside, and a new trial ordered, by the General Term. This order is appealed from, and the learned counsel for the respondent now urges in its support: First. That there is no finding by the referee that the defendant took the deed above referred to in his own name without the knowledge or consent of his mother, and, therefore, that the case is within the statute of uses and trusts. (1 R.S., 728, tit. 2, part 2, ch. 1, art. 2, §§ 51, 52.)Second. That the claim is barred by the statute of limitations.
I am unable to see that the statute applies to the defendant's case. The defendant occupied towards his mother, a fiduciary relation. He was her agent, as such he received her money, invested it in land for her, but he took the title in his own name. Not with her consent, or with her knowledge. The statute (§ 51), was obviously intended to prevent a secret trust in favor of the person paying the consideration. In Siemon v. Schurck
(
An absolute conveyance is one which vests the entire interest in the property conveyed, both legal and equitable in the grantee. Consent to such a conveyance would be inconsistent with the finding that the lots were purchased for the mother. If they were bought for her by her agent, it must have been without her knowledge or consent that the absolute conveyance was taken to himself, and a finding by the referee to that effect may be inferred as involved in his general conclusion in favor of the plaintiff. (Grant v. Morse,
Nor does the statute of limitations aid the defendant. He did not until after his mother's death, assume to own the property, or deny her right thereto. Nor did she have knowledge that the deed had been taken in his name. Until the happening of one or the other of these events, no cause of action accrued. She died in 1866, and this action appears to have been commenced in 1867.
The order of the General Term should be reversed, and a new trial denied.
All concur, except ANDREWS, J., absent.
Order reversed, and new trial denied.