79 N.J. Eq. 461 | New York Court of Chancery | 1911
My views in this case are entirely defined; the arguments which have been made, and the references to authorities during the progress of the case, have sufficiently refreshed my memory of adjudications in cases of this class, to enable me, I think, to correctly dispose of the matter at this time without taking it under advisement.
There is no doubt touching the facts of the case. Under the evidence which has been received the facts are clearly ánd indubitably established. The only possible ground of opposition that can be made to the decree sought is necessarily based upon the claim that some of the evidence which has been received is not competent by reason of our statutes.
The evidence which has been offered and received under my rulings establishes beyond all doubt the fact that Mr. Thomas, Sr., purchased the land in question for his own benefit at sheriff’s sale, paying $21,400 ior it with his own money. He took the title, however, in the name of his three sons, causing the sheriff to make a deed to them instead of to himself. B}r prior arrangements with his sons, he had procured from them their assent that he should do. so, and their promise that at such time as he desired the property conveyed by them to him, they would execute the deeds. He accepted their assurance to that effect without any writing being executed, and trusted them with the legal title to the property, which, as already stated, he purchased for himself, and for his own use and benefit and paid for with his own funds. The evidence clearly discloses that no money was contributed by either of these sons, and that neither understood that the purchase was for their benefit, but that all three understood that the purchase was for the sole benefit of the father. The fact is that a reason existed, which Mr. Thomas, Sr., thought was a good reason, for putting the title in the names of his sons. He was
The objections to the admissibility of the testimony to which I have already referred, have been considered during the progress of the trial, and need not be here restated at any length.
The first objection is that the testimony of complainant touching conversations with his deceased son is incompetent because of the fact that there is before the court a defendant in a representative capacity. As stated, during the hearing, the case of Cowdrey v. Cowdrey, reported in 71 N. J. Eq. (1 Buch.) 353, fully meets that objection. There is no defendant before this court in a representative capacity within the meaning of the statute. Tiie present suit is essentially a suit in rem, a suit purely for the restoration of legal title, and seeks no relief in personam. If it were true, however, that the complainant should be excluded from testifying to conversations between himself and his deceased son, the evidence would yet be ample to establish the facts which I have stated to exist, because the two remaining sons who are still alive have both testified to substantially the same conversations to which the father testified and have fully established the fact, and no objection can arise, so far as their testimony is concerned, based on the ground of a suit against a defendant in a representative capacity.
An examination of the statute of frauds will disclose that it is not so broad as the statement which I have just made. The statute of frauds will not permit an express trust to be established by parol testimony, but, by its very terms, it excepts resulting trusts. The language of the statute is, as I recall it, that there is excepted from its operation trusts which arise from implications or construction of law. That may not be the language of the statute, but it is substantially the language. Such trusts are not within the statute, and the courts have uniformly held that parol testimony is competent to aid in their ascertainment. Therefore, if this case were a case in which Mr. Thomas, Sr., had caused a deed to be made to a stranger, the consideration having been supplied by Mr. Thomas, the presumption of law would be that the person who supplied the money had supplied it for his own benefit, and not for the benefit of the stranger, that the title follows the consideration, and in such a case the law creates and determines the existence of a resulting trust. That is what the statute refers to as a trust which results from implication or construction of the law, and is therefore one of the trusts which is excepted by the terms of statute. It follows in consequence that where money is supplied by one person to pay for property, the title to which is taken in the name of another, the law permits the person who supplies the money to testify that he supplied the money, and the trust results as a matter of law.
An additional element arises, however, when the conveyance, the consideration for which is paid for a father, is made to a son, daughter, wife or other near relative or dependent; the mere fact of supplying the consideration, in such a case, does not create a presumption of ownership in the person who supplies'the consideration. On the contrary, the presumption is the reverse. The presumption in such a case is that the father supplies the consideration not for his own benefit but for the benefit of the relative; therefore, standing alone, the mere testimony on the part of the father or any other -witness that the father supplied
When conversations between the party who supplies, the consideration, the father, and the party who receives the conveyance, the son, are sought to be introduced into evidence for the purpose of repelling the presumption of gift, the thought necessarily suggests itself that the effect of such testimony is to establish a trust. As such it would be incompetent, but it is competent to establish that it was not a gift, settlement or advancement. In other words, it is competent to repel or rebut the presumption of gift which the law has created, and it will be received for that purpose and for that purpose alone, and if, when received, it is adequate to fully dispel the presumption of settlement or advancement or gift, then the ease stands exactly as it would stand in the case already suggested of a conveyance made to a stranger. In other, words, the testimony in this case is competent for the purpose of establishing, and is ample in quality to establish, the fact that this conveyance was not by the father ordered made to these children as a gift, and the presumption of gift which arose from the relationship is dispelled by that evidence. That brings the case upon the same plane as a conveyance made to a stranger, by money supplied by the complainant, and in such case the law creates or presumes the trust.
