
    Mary J. Mulhern Dressler, Plaintiff, v. Lillian V. Mulhern et al., Defendants.
    (Supreme Court, Queens Special Term,
    August, 1912.)
    Deeds — tenants by the entirety — reformation of deed—husband and wife.
    Equity — decree in, declaring a trust — statutes.
    A husband’s deed to his wife of an undivided one-half of certain premises is ineffectual to create a tenancy by the entirety, though the deed contain an agreement that the whole of the premises be held by them as tenants by the entirety, nor, in the absence of the unities of time and title, would it make them joint tenants of the property.
    A deed having been drawn as the grantor intended, it is not proper to reform it so as to add the name of another grantee alleged to have been omitted by mistake.
    Where premises are purchased with a wife’s money with the intention that the conveyance should be to her and her husband as tenants by the entirety, the husband upon taking said conveyance in his own name becomes the trustee of the resulting trust for her benefit, at least in one-half of the premises during their joint lives, with the right of survivorship.
    Under the deed of the husband to his wife they became tenants in common of the legal estate; and Ms heirs at law took one-half thereof by descent subject to the wife’s right of dower.
    In the absence of statute, a decree in equity declaring a trust and ordering a conveyance of land cannot be executed against infant defendants.
    Action to reform conveyances.
    
      Edmund C. Viemeister, for plaintiff.
    Clarence A. Drew, for defendant Lillian V. Mulhern and guardian ad litem for infant defendants.
   Benedict, J.

This is an action to reform certain deeds so as to vest title to certain premises in the plaintiff as surviving tenant by the entirety. The plaintiff was formerly the wife of Thomas Mulhern, deceased. During the coverture, Thomas Mulhern purchased with plaintiff’s money certain real property from George C. Tilyou and wife. It is alleged that the intention was that the deed should run to plaintiff and her husband and thus create a tenancy by the entirety, but that without the knowledge or consent of plaintiff her husband, by mistake, took a deed in his own name. Afterward the husband executed and delivered a deed to his wife purporting to convey to her an undivided moiety or half part in the premises, and providing as follows: It is understood and agreed, however, that the whole of the above described premises shall be held by the parties of the first and second part as tenants by the entirety.”

This was, of course, ineffectual to create a tenancy by the entirety, since that form of tenancy arises only from a conveyance made by a third person to a husband and wife. 2 Reeves Real Prop. 976; Stelz v. Shreck, 128 N. Y. 263, 266; Jackson v. McConnell, 19 Wend. 175, 178. Bor could it operate to create them joint tenants because of the absence of the unities of time and title. 2 Reeves Real Prop. 958, 959.

The complaint does not contain appropriate allegations for the reformation of the deed from Tilyou and wife to the' plaintiff’s late husband; for it is not alleged that Tilyou and wife intended to make any conveyance different from the one they did make. There was very slight but wholly inconclusive evidence that Tilyou’s agent was informed, before the conveyance, that the deed was to run to the husband and wife. Tilyou and wife are parties to this action but have not interposed an answer. Under these circumstances it does not seem proper to reform the deed from Tilyou and wife to Thomas Mulhern, and no reformation of the deed from Mulhern to the plaintiff so as to create such a tenancy is possible.

The plaintiff is. not without remedy, however. The effect of the original transaction was to constitute her late husband trustee of a resulting trust for her benefit, if not in the whole premises, at least in one half thereof during their, joint lives with the right of survivorship, and his deed to her constituted an attempt, although abortive, to perform this trust. Its legal effect was, however, to constitute them tenants in common of the legal estate, and hence the legal estate in or legal title to an undivided one-half of the premises has descended to the husband’s heirs-at-law, subject to the dower right of the plaintiff. But the intent of the parties to create a right of survivorship in the plaintiff is plain, and plaintiff not being a volunteer, but having parted with a valuable consideration, equity will aid her by raising a constructive trust for her benefit, on the principle that where parties have attempted to accomplish a certain result, but the appropriate legal means have not been used and the result intended can be reached by raising a trust, equity will do so in favor of one not a volunteer. This has been done in cases where property fronting on a street in which there is an elevated railroad has been conveyed, with an attempt to reserve the easements of light, air and access appurtenant to the premises, or the right to recover damages for the invasion of such easements. In such cases it has been held that only the grantee could recover damages, but that he would be decreed to hold them in trust for the grantor. Pegram v. New York El. R. Co., 147 N. Y. 135; Western Union Tel. Co. v. Shepard, 169 id. 170; McKenna v. Brooklyn Union Elevated R. R. Co., 184 id. 391.

The plaintiff may, therefore, have a decree declaring that the defendants hold an undivided one-half of the premises in trust for plaintiff in fee, and directing each of them to convey to plaintiff the undivided interest held by such defendant.

I think this relief can be granted in this action, because it differs only in form from the relief demanded in the complaint, and does not depart therefrom in substance.

Unless there is some provision of statute which permits the court in declaring a trust to appoint a referee to make a conveyance, or to direct a sale of the premises, the execution of the judgment to be entered hereon as against the infant defendants must await their coming of age. Sutphen v. Fowler, 9 Paige, 280.

Judgment accordingly.  