48 N.Y.S. 487 | N.Y. App. Div. | 1897
The plaintiff seeks by this action to have certain premises situate in the towns"of Cheektowaga and Tonawanda, Erie county, the legal title to which is in the defendant Clara S. Balcom, as the residuary devisee of one Martha J. Smith, deceased, adjudged to be the property of the plaintiff, and to have been held in trust for him by Mrs. Smith at the time of her death.
Upon the trial it was conceded that the plaintiff was entitled to a conveyance of the Cheektowaga lands, and consequently the only-question which it will be necessary to consider upon this review is that which is involved in the plaintiff’s claim to the Tonawanda premises. The facts upon which this claim is founded are apparently free from controversy, and, as established by the judgment appealed from, they are in substance these, viz.:
In June, 1886, the plaintiff became the owner of a house and lot in the city of Buffalo, the purchase price of which, including some personal property, was $10,500. After making such purchase, the plaintiff obtained possession of the premises and continued in the
Thereafter, and on the 11th day of October, 1894, Martha J. Smith died, leaving a last will and testament of which the defendants, George W. Smith and Clara S. Balcom, are the executors, with full power to convey any and all property of which the testatrix died seized.
After having duly qualified the executors were requested by the plaintiff to convey to him the premises in question, but this they declined to do, and the present action was thereupon brought.
The theory upon which the plaintiff seeks to recover is that Martha J. Smith took the title to the premises which were conveyed to her in the manner hereinbefore, detailed, impressed with all the existing equities in favor of the plaintiff which resulted from the agreement theretofore entered into between him and the defendant George W. Smith that the latter should take the premises simply as trustee for the former, to the end that a sale might be made more easily and to better advantage.. It was held, however, by the learned trial court that the plaintiff’s contention could not be sustained without violating section 51 of the Statute of Uses and Trusts, which section reads as follows, viz.: “ Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.” (1 R. S. 728, § 51.)
It is probably true that the grant of the premises in question to Martha J. Smith was made for a consideration paid by the plaintiff, that is, they were sold upon the foreclosure of a mortgage which, although purporting to belong to the nominal purchaser, was in fact the property of the plaintiff. As to this there is no dispute whatever, and we fail to find anything in the record which shows that Martha J. Smith had the slightest equity in these premises; she paid nothing for them; she expended nothing upon them; she was simply the medium, and undoubtedly the conscious and willing medium, through which the agreement between her husband and the plaintiff was effected. There is no pretense that this trust was created to hinder or delay the plaintiff’s creditors or for any purpose which
To permit her or her representatives, in these circumstances, to invoke the aid of the statute in the perpetration of a wrong which falls but little, if any, short of a gross fraud, will be putting the statute to a very different use from the one designed by its framers.
It has been repeatedly held that a court of equity will not permit the Statute of Frauds to be used as an instrument of fraud, and also that the section upon which the decision of the trial court rests has no application to a case where equities have arisen out of the agreement of the parties. (Ryan v. Dox, 34 N. Y. 307; Carr v. Carr, 52 id. 251, 261; Robbins v. Robbins, 89 id. 251; Wood v. Rabe, 96 id. 414; Bitter v. Jones, 28 Hun, 492; Gage v. Gage, 83 id. 362.)
This, as we have seen, is clearly a case belonging to the latter class, and it, therefore, as we think, falls within the rule above stated, and is one in which a court of equity is called upon to exercise its remedial jurisdiction.
So much of the judgment as is appealed from should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
So much of the judgment as is appealed from reversed and a new trial ordered, with costs to the appellant to abide the event.