
    Maria C. Hubbard, Resp’t, v. Aurelius S. Sharp et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1887.)
    
    1. Parol trust in real estate.
    Ho estate or trust in real property can tie created by paroi. It must-be by deed or conveyance in writing, though the declaration of such trust, may be proved “ by any writing subscribed by the party declaring the same.”
    2. Recovering property voluntarily conveyed without consideration.
    If a grantor voluntarily parts with her title without consideration, she cannot thereafter in the absence of fraud recover it, even though the grantee promised orally to recovey upon request.
    
      Appeal from a judgment in favor of the plaintiff entered upon the report of a referee.
    The plaintiff, on the 23d day of February, 1876, was the owner of a house and lot, and on that day conveyed the same by deed to Eunice M. Sparks, who, on the same day, conveyed the same to George A. Hubbard, who, on November 3d, 1876, conveyed the same to Stephen E. Calkins, who, on October 7, 1880, conveyed the same to Harriet M. Bullard, who, February 11, 1882, conveyed the same to Fida C. Sharp, wife of the defendant, Aurelius S. Sharp.
    The title conveyed by each of these deeds was absolute; the consideration expressed in each deed was nominal; the purpose of the conveyance was that the property should be held by the grantee in trust for the use and benefit of the plaintiff.
    There was no written declaration of trust. The referee does not find that there is any written evidence of the trust. No fraud is alleged or proved. No consideration was paid, except that Harriet M. Bullard when she held the title paid $1,750 to satisfy a mortgage upon the premises, which was a lien upon them subsisting from and prior to the date of the plaintiff’s deed t o Eunice M. Sparks, and when Mrs. Hubbard conveyed to Fida C. Sharp, the latter gave her her bond for $1,750, secured by a mortgage upon her premises, the principal of which bond and mortgage remains unpaid, together with upwards of six months interest.
    The several deeds were made upon the plaintiff’s request. Fida 0 Sharp accounted to the plaintiff for the rents of the house and lot and paid the same to her, nearly in full, from the time she took the deed until her death. She left a will, of which the defendant is the executor, with power of sale, in which she devised all her property to him in trust, to apply the income to the education and support of her son, the defendant, Harry A. Sharp, until he attained the age of twenty-one, and then to divide the property equally between himself and Harry A. Sharp.
    The defendant, Aurelius 0. Sharp, has made some payments to the plaintiff upon account of the income of the premises since the death of his wife.
    The value of the premises is not found by the referee.
    
      Frank S. Black, for executor, app’lt; William W. Merrill, guardian ad litem, app’lt; N. A. Calkins, for resp’t.
   Landon, J.

—The referee finds that Fida C. Sharp received the title to the premises under an agreement with the plaintiff to hold the same in trust for plaintiff’s benefit, and to convey the same to her upon her request. This agreement, whereby an estate was created in plaintiff and a trust declared for her benefit, was wholly by paroi. The statute declares that no estate or trust can there be created. 2 R. S., 135, § 6. Such estate or trust must be created by deed or conveyance in writing, though the declaration of trust may be proved “ by any writing subscribed by the party declaring the same. Id., § 7.

The plaintiff, however, does not produce “any writing subscribed by” Mrs. Sharp, “declaring the same.” Certain letters are unintelligible without recourse to paroi evidence, and when explained, it is seen that they declare no trust in the plaintiff, but are at best but consistent with one which by possibility may have been orally declared. The authorities are numerous and decisive that the statute cannot thus be set aside. Cook v. Barr, 44 N. Y., 156; Wheeler v. Reynolds, 66 id., 227; Levy v. Brush, 45 id., 589; Sturtevant v. Sturtenant, 20 id., 39; Hutchins v. Hutchins, 98 id., 56; Hurst v. Harper, 14 Hun, 280.

The plaintiff does not allege or prove fraud. She deliberately and of her own choice conveyed her land, and from time to time procured it to be conveyed from one friend to another, and finally to Mrs. Sharp, without consideration, without intending to create a mortgage, without any written reservation of any estate in herself, or any declaration of trust in her favor.

Nothing was omitted from the deeds which she desired inserted. She did not lack time and opportunity for advice, she was not surprised, or coerced, or in any way misled or unduly influenced. We judge from the testimony that she considered herself less liable to lose her land at the hands of her grantees than at the hands of her creditors.

Equity might interpose to protect her from the improper practice of her grantees, if thereby she had lost her estate, but if we give full effect to the paroi evidence which she was permitted to adduce, we see that she disposed of her land in a manner most agreeable to herself; her real grievance is, that having voluntarily parted with her title, she cannot voluntarily recall it. If Mrs. Sharp made the oral promise to reconvey upon her request the statute does not compel the performance of such a promise.

Many exceptions were taken by the defendants to the admission of evidence which in view of the disposition of the case upon the main question, we do not deem it necessary to discuss.

The judgment must be reversed, the reference discharged, new trial granted, costs to abide the event.

Learned, P. J., and Williams, J., concur.  