15 Wend. 647 | N.Y. Sup. Ct. | 1836
By the Court,
In the late revision of the laws, resulting trusts were in most cases abolished. 1 R. S. 728, §51, 53. At the time, however, when the deed in this case was executed, if the Townsends had paid the whole consideration, and the intention between them and Ketchum was that the grant should enure to their benefit, there can be no doubt that a trust would have resulted in their favor. Whether such an interest can be set up at law as a defence in the action of ejectment, need not now be considered. Conceding the general doctrine on which the cause was mainly placed
It may well be doubted whether any trust whatever, or to any extent, resulted to those who paid the money into the state treasury. If it was paid with the assent of Ketchum, the Townsends should probably be regarded as creditors for the amount, rather than as having acquired any interest in the land. A trust will not result to one who pays a part only of the consideration on the purchase of land conveyed to another, unless it be some definite part of the whole con
The counsel for the defendants urged several considerations in favor of sustaining the verdict in case the court should be against them on the question which has been examined. It was said that the plaintiff was barred by an adverse possession in the defendants and those under whom they hold. It is a sufficient answer to this suggestion, that when the plaintiff was proceeding with his proofs to rebut the evidence of an adverse holding on the part of the defendants, the judge interfered and informed the counsel that such proofs would be useless, for there could be no question of adverse possession raised, as the case then stood. “ Whereupon the counsel for the plaintiff stopped the inquiry.”
It was also urged, that the deed of the surveyor general had ■ never been delivered to Ketchum. There was certainly some difficulty in the plaintiff’s case, in relation to the delivery of the deed; and if the judge, in his charge, had placed the cause upon this single ground, it may be that a verdict for the defendants would not have been disturbed. But where, as in this instance, the case is submitted to the jury to find their verdict for one party upon either of two distinct grounds, and the instruction upon one of the questions is erroneous in point of law, the verdict cannot be sustained. If the jury had been further instructed, in the event of finding for the defendants, to say on which ground the verdict rested, and they had answered that there was no delivery of the deed, the court would have been relieved from the necessity of examining the other
It was said also, that under the circumstances of this case a conveyance from Ketchum to the Townsends might be presumed. There is no doubt that an equitable title may sometimes be assisted at law, by allowing the presumption that there has been a conveyance of the legal estate; but it does - not appear that any such question was raised on the trial. On the contrary, the cause was submitted to the jury on other grounds.
New trial granted.