Robertson v. Sayre

6 N.Y.S. 649 | N.Y. Sup. Ct. | 1889

Lead Opinion

Daniels, J.

I do not think the statute avoiding a resulting trust when the consideration is paid by one person, and the title is taken in the name of another, applies to this case; for the deed was not delivered to the grantee named in it, but he refused to accept it, or in any manner sanction the purchase or the conveyance to himself. The title, on this state of facts, did not vest in him. But that circumstance will not support the action which is in favor of the heirs of the former owner of the land, and whose interest was in form sold at the foreclosure sale. It proceeds upon the ground that the person named as the purchaser in the master’s deed was fraudulently induced by the defendant to quitclaim the land to him for a nominal consideration. But the grantor in this deed is the person to redress that wrong, if it has been perpetrated. The plaintiffs have no right to complain of the deception by which he was ipduced to give the deed. If they have any remedy, it will be to set aside the sale, for the reason that the nominal purchaser refused to accept or take the title. Whether even that is available to them is not a subject to be decided in this action, which is for an entirely different object. As the case is now before the court, there seems to be no other way open than to affirm the judgment.

Van Brunt, P. J., concurs.

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Dissenting Opinion

Brady, J.,

(dissenting.) By the statutes of uses and trusts (1 Rev. St. p. 728, § 51) the rule of the common law was changed, and it was declared that no trust should result to the person paying the money on a purchase of real estate, but the title should rest in the alienee named in the conveyance. The fifty-third section excepted cases where the alienee should have taken an absolute conveyance to himself without the knowledge or consent of the person paying the money. Here, as we have seen from the facts, stating them as broadly as they can be given for the plaintiffs, it is not to be disputed that the money was paid by Robertson, and the conveyance for his benefit taken by him in the name of another, namely, Messinger. The fifty-third section has therefore no possible application. The transaction was within the terms and spirit of the statute, and was one inveighed against, inasmuch as Robertson was insolvent, and the design of it was clearly to evade the application of the purchase to the payment of his debts. The effect of section 51 on such an incident cannot be questioned. Garfield v. Hatmaker, 15 N. Y. 478; McCartney v. Bostwick, 32 N. Y. 59; Bank v. Olcott, 46 N. Y. 16; Everett v. Everett, 48 N. Y. 218. Messinger, being invested with the title by operation of law, albeit he disclaimed the whole proceeding, had the absolute right to dispose of it as he pleased. The payer of the money forfeited all rights which he might have acquired by taking the conveyance to himself. He deliberately incurred the penalty, and sacrificed his money. Messinger, having this right, exercised it, and, as he committed no violation of law or rule of public policy, no court can undo the act, either for friend or relative of the purchaser in fact. Whether a court of equity would enforce the payment or performance of the peculiar consideration agreed upon for the transfer to the defendant is not now a subject for consideration. The learned counsel for the plaintiffs thinks that the case of Foote v. Bryant, 47 N. Y. 544, sustains the right of his clients to indemnity from the defendant, but this thought is an erroneous one. In that case it was held that the alienee could, if he chose, regard the equitable rights of the person paying the money, and secure them by a lawful declaration of trust or conveyance, but if in doing so an absolute conveyance were executed to a third person, without the knowledge of the cestui que trust, it brought the transaction within the provisions of the fifty-third section, already mentioned. Here, as we have seen, there was a disclaimer by the alienee of the trust, and no attempt of his of any kind to secure the equitable rights of the payer of the money. The case is indeed bald of any preservative of them, and the judgment must be affirmed. The result seems to be harsh, but the statute is imperative. Ordered accordingly.