
    Esther C. Townsend et al., App’lts, v. Joshua Rackham et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Trust — Mortga&b.
    The grandmother of the plaintiffs, without their knowledge, executed a deed of certain property, and took back a mortgage < onditioned for payment of a certain amount to herself for life, and of certain sums to them five years after her death. Subsequently various dispositions of the property were made by her, and finally she took a mortgage which contained no provision for plaintiffs. It appeared that it was the sole intention of the grandmother, in making the deeds and receiving the mortgages, to make provision for herself during life and a testamentary provision for her grandchildren, and that the scrivener to whom she applied to make a will stated that he could fix it in this manner. ITeld, That no trust was created in behalf of plaintiffs as the grandmother did not intend to create an irrevocable interest in the lands.
    2. Witness — Evidence.
    A former grantee of the premises, which are held by a bona fide purchaser, is not incompetent to testify to conversations with the deceased grantor in which she took no part.
    ApPEAL-by the plaintiffs, Esther 0. Townsend and Willard Brown, from a judgment entered in Orleans county, March 15, 1892, on decision of the court at special term, dismissing their complaint upon the merits.
    
      Henry M. Davis, for app’lts; George Bullard, for resp’ts.
   Macomber, J.

The maiden name of the plaintiff Esther C. Townsend was Esther C. Lutts. The plaintiff Willard Brown is the assignee of the administrator of the estate of Maria Leach, who died July 12, 1890, in the state of Iowa. These two persons, Esther C. Lutts and Maria Leach, were grandchildren of Catherine Farnham, hereinafter mentioned.

On the 26th day of September, 1857, Catherine Farnham, who was seventy-three years of age and a widow, deeded to her two grandchildren, the defendants, Almeron C. Wilson and Valentine A. Wilson, a deed of her farm in the town of Carlton, Orleans county, FT. Y., and received back from the grantees a mortgage containing the following condition: “ This grant is intended as a security for the payment of the following sums of money, to wit: seventy-five dollars on the 1st day of January, and twenty-five dollars on the 1st day of July, in each and every year hereafter during the natural life of the party of the second part, to be paid to the said party of the second part at the house of the party of the first part in the town of Carlton; and the further sum of $1,500 to be paid as follows:

“ One thousand dollars to be paid to Maria Leach, or her heirs, five years from the death of the said party of the second part, and $500 to be paid to Esther C. Lutts five years from the death of the said party of the second part (the several sums herein, mentioned is for the purchase money of said premises). And, as a further consideration to these presents, it is agreed between the party that, in addition to the sums already mentioned and agreed to be paid, the said party of the first part agrees to and with the said party of the second part to provide her, the said Catherine Farnham, a home at their home, or homes, at all times when she may choose during her natural life, and provide for her board and all necessary clothing and all things necessary and proper for her comfort and support during her natural life. And this conveyance shall be void if such payments be made as hereinafter specified, and in case default shall be made in the payment of the above sums hereby intended to be setiured, or any part thereof, or in case default be made in providing for and “taking care of the said party of the second part as above provided, it shall be lawful for the party of the second part, her executors, administrators or assigns, at any time thereafter to sell the premises hereby granted, or any part thereof, in the manner prescribed by law, etc.”

On the 12th day of October, 1857, this mortgage was discharged by Catherine Farnham, and the discharge was delivered to the mortgagors, whereupon they gave her a second mortgage containing the same conditions as the first, except that in the condition for support these words were added, “ while living with the party of the first part.”

This second mortgage was in turn discharged on the. 15th day of October, 1858, by Catherine Farnham, and the Wilsons thereupon conveyed the lands back to her. She then deeded to Susan A. Wilson, wife of Valentine A. Wilson, the north half of the farm, and to Lovina L. Wilson, wife of Almeron 0. Wilson, the south half thereof, and took back from each a mortgage for her support, containing these provisions: “While living with the party of the first part, $37.50, semi-annually, and as security for the payment to Esther- C. Lutts of $250, and to Maria Leach $500, five years after the death of Catherine Farnham.” The other conditions of the mortgage were the same as those contained - in the first mortgage. On the 11 th day of May, 1861, Catherine Farnham discharged these last two mortgages, and delivered the discharges to Lovina L. Wilson and Susan A. Wilson, respectively, and they in turn deeded back to her the farm previously deeded to them. Thereupon Catherine Farnham deeded the south half of the farm to Almeron C. Wilson, and the north half to Valentine A. Wilson, and took back from each of them a mortgage containing the same conditions as the last two mortgages, except that her annuity was stated to be $15 semi-annually, instead of $37.50. On October 1, 1868, Valentine Wilson deeded his north half of the farm to Almeron 0. Wilson. On December 11, 1870, Catherine executed a discharge of the mortgage given by Almeron .0. Wilson on the south half of the farm, and Almeron C. Wilson gave the mortgage thereon to one Isaac Cochrane for $1,500 for money borrowed. After this last named mortgage was recorded, and on January 2, 1871, Almeron C. Wilson gave Catherine Farnham a mortgage on this half containing the same conditions as his mortgage of May 11, 1861.

The trial justice has found as a fact, which finding is well supported by the evidence, that' neither Maria Leach nor Esther C. Lutts had any knowledge of the execution and delivery of, or in' any manner accepted or assented to, any of the mortgages described above, or any of the provisions in any of these mortgages in their favor, prior to such satisfaction. No claim was ever made by them, under any of these mortgages, until this action was brought. On the 7th day of February, 1873, Catharine Farnham executed a discharge of the mortgage given by Almeron C. Wilson, January 2, 1871, and also the mortgage given by Valentine A. Wilson, May 11, 1861, and took back from the former a mortgage on the 15Í acres for her support and for the payment to her of sixty dollars a year, to pay her funeral expenses and to erect suitable grave stones at her grave, etc. Catherine Farnham continued to reside in the families of Almeron C. Wilson and Valentine A. Wilson from September, 1857, to the time of her death, which was August 20, 1883.

The defendant, Joshua Rackham, is a grantee in good faith and for value of these lands from Almeron C. Wilson. The defendant, Fred. Gf. Coann, is the owner of another mortgage upon these premises in the sum of $1,800, which he received through various assignments, and this mortgage, too, the trial court has found to have been taken and is held in good faith and for value.

The plaintiffs seek to work out an interest in these lands through a supposed trust created by the mortgages above mentioned. If this position had any foundation for its support under the instruments as they were originally drawn, the plaintiffs, having no knowledge thereof and never having taken advantage of the same, prior to the rescission thereof, could not work out a trust in their behalf susceptible of enforcement, só long as the relation of cestui que trust and trustee appears not to have been established. Acton v. Woodgate, 2 Myl. & K. 492.

But, clearly, there was no trust created in behalf of either Miss Lutts or Miss Leach by these instruments. There was no consent to the creation of a trust either by the mortgagor or mortgagee. Indeed, the very negative of this proposition is abundantly established by the strong circumstances pervading the case, which indicate that it was the sole purpose of Catherine Farnham, in making the deeds and receiving back these mortgages, to make •provision for herself during her lifetime, and to make a testamentary provision, also, for her two grandchildren, Esther 0. Lutts and Maria Leach.

It appears, furthermore, that she sent for her scrivener, and stated to him that she wished to have a will drawn, and thereupon the scrivener said he could fix it for her by way of a deed and mortgage. She was informed by him that this arrangement would be just the same as a will, and that she could revoke it at any time in the same manner as she could a will. She expressed her purpose to control the property while she lived, and desired to have it arranged in a safe manner for her, so she could make any changes she pleased. Under this evidence, but especially under the persuasive circumstances attending the history of these several instruments, the learned justice was well justified, we think, in finding, as a matter of fact, that Catherine Farnham did not intend at any time to create any irrevocable interest in these lands in either Esther C. Lutts or Maria Leach, thus taking the case out of the operation of the decision in McPherson v. Rollins, 107 N. Y., 316; 12 St. Rep., 488. If parol evidence was required to characterize the purpose of those deeds and mortgages, the same is competent under the decision of this court in Kelsey v. Cooley, 11 N. Y. Supp., 745; 33 St. Rep., 775.

Objection is made that the evidence of Lovina Wilson was incompetent, and that, as the same was objected to, and the objection finally overruled by the court, a new trial should be granted upon the ground of the exception taken to such ruling. But Lovina Wilson had no interest in the action, although she was made a party thereto. She had no interest in the result, because the property had passed into the hands of a bona fide purchaser, Joshua Rackham. She was not in any sense an interested party to the subject matter of such conversation, and took no part therein, and hence was a competent witness. Simmons v. Havens, 101 N. Y., 428; Cary v. White, 59 id., 336; Kelsey v. Cooley, supra.

It follows that the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., Lewis and Haight, JJ., concur.  