
    WILLIAM SCHMIDT, Appellant, v. BABETTE SCHMIDT, Respondent.
    
      Statute of uses and trust—purchase of real property with joint funds of plaintiff and another—when does not inure to benefit of such other person.—Equitable lien—when does not exist in favor of said other person for moneys laid out by him on such property.—Statute of frauds.
    
    Before Freedman, Russell and Arnoux, JJ.
    
      Decided February 6, 1882.
    Appeal from judgment dismissing complaint upon its merits.
    Action for specific performance, and to declare a trust in favor of plaintiff in certain real estate field by-defendant. The parties are husband and wife.
    The facts as found by the trial judge are substantially as follows : In 1865, the plaintiff and defendant intermarried. In 1869, plaintiff agreed, that if defendant would dispose of her business and take charge of his business, the future profits of said business should belong to both parties ; thereupon she disposed of her property, and gave her whole attention to the latter business, and the moneys made therein were deposited in savings banks in the joint names of the parties. By April, 1879, profits had accumulated to about ten thousand dollars, nine thousand of which were on deposit in the Bowery, the Dry Dock, and the Gf-erman Savings Banks, and one thousand were in plaintiff’s possession. In 1878, plaintiff notified the Dry Dock and Gf-erman Savings Banks that none of said moneys should be paid lo defendant. In April, 1879, defendant informed plaintiff that she would like to buy or rent a certain house, and plaintiff replied that he had no time to look at it, and would have nothing to do with it, but that she, defendant, might do as she pleased. Defendant thereupon bought the house for $10,000, drew $f¡,0Ó0 from the Bowery Savings Bank, with which and $800 of the money she had in her possession, she made cash payments, balance on mortgage. In May, she and. p’aintiff took possession of the' property, and in June, title passed to her. The plaintiff knew that she had taken title in her own name. Immediately after the parties took possession of said premises, the defendant employed mechanics, who began to repair the house, whereupon plaintiff said, if defendant was satisfied, he would convert the house into a flat-house. Defendant consented, paid the mechanics and discharged them; plaintiff then procured the services of an architect, had plans drawn which were submitted to defendant, who approved of them, and, in accordance with such plans, the house was remodeled and enlarged. No agreement was made between the parties that the legal title should, in whole or in part, be in the name of the plaintiff, or that he should have a lien upon the real estate for any moneys advanced by him in building or remodeling the house.
   The court at General Term, held that If there had been a contract to the effect that the plaintiff should have some interest in the land, it would have been void under the statute of frauds. So no trust can be implied and enforced against the particular premises without proof that the defendant committed some wrong in violation of plaintiff’s rights, or perpertrated some fraud upon the plaintiff, and that the plaintiff has no adequate remedy at law. Even if the plaintiff had advanced the whole purchase money, that of itself would not raise a sufficient equity in plaintiff’s favor to authorize the court to interfere as requested, for the statute of uses and trusts expressly provides, that 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 named in such conveyance, subject only to the rights of certain creditors. bTor can I find that, independently of the considerations stated, the circumstances of the case are sufficient to constitute an equitable lien in favor of the plaintiff.”

Wehle & Jordan, for appellant.

Michael C. Gross, for respondent.

Opinion by Freedman, J.; Russell and Arnoux, JJ., concurred.

Judgment affirmed, with costs. 
      
       As to questions involved herein, see Wood v. Mulock, ante, p. 70.
     