
    Timothy W. Quinn, Respondent, v. Robert Quinn, Appellant.
    
      Equity—performance .decreed of am oral agreement between two. persons to own in common real.property, the title to which is taken in the name of one of them—. additional allowance. • .
    Section 74 of the Real Property Law (Laws of 1896, chap. 547)," which provides ' that whére a grant of real property is made to one person for a valuable consideration paid by" another, no trust; results in favor of the person- paying the consideration, must be read in connection with section 234 of that act which • provides, “Nothing contained, in this article abridges the powers of courts of equity to compel the specific performance of agreements in cases of part ■ performance.”
    Where two persons enter into a verbal agreement to purchase real property, with moneys, contributed by each of them in equal shares, upon the understanding that they are to hold the property as tenants in common, and after the agreement has been performed according to its terms for a period'of four years, during which time each of the parties contributes to pay off liens upon the property and exercises rights of ownership therein, one of such persons, hr whose ■ name the title to the property has been .taken, attempts to deprive the other ■ party to the contract of his rights in the- premises, a court of equity will require the former to perform the verbal contract. .
    In an action to compel the performance óf the contract, the court may properly grant an extra allowance-based upon the value of the plaintiff’s interest in the premises.
    
      Appeal by the defendant, Robert Quinn, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of February, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.
    The action was brought to obtain an adjudication that the plaintiff was seized of and entitled to an undivided one-half interest in certain real property.
    
      John T. Mulhall, for the appellant.
    
      Henry E. Heistad, for the respondent.
   Woodward, J.:

The evidence in this case is sufficient to support the conclusion, evidently reached by the learned court at Special Term, that on or about the 1st day of May, 1895, at the borough of Brooklyn, the plaintiff and defendant entered into a verbal agreement for the purchase of premises known as Nos. 23 and 25 Tiffany place, Brooklyn ; that the plaintiff and defendant contributed an equal amount of money to a fund for the purchase-, of this property, which was to be subject to the mortgages then a lien thereon, and that the said property was to be enjoyed in common between plaintiff and defendant, and the rents, issues and profits and losses, if any, were to be shared equally between the parties, after paying interest on existing liens and mortgages, taxes, water rates, assessments and other expenses incident thereto; that the property was purchased,, the title being taken in the name of the defendant, and that the plaintiff and defendant entered into possession of the same, and continued to occupy the same as tenants in common for several years, each party paying upon the indebtedness, and each at times collecting rents, etc., and acting as the joint owners of the premises.

There can be no reasonable doubt from the evidence that the plaintiff and defendant, who are brothers, owned the premises in ■dispute as tenants in common; that they so understood the transaction until some time in 1899, when they appear to have dissolved ■a partnership existing between them in the trucking business, and to have drifted apart in their affairs, and the defendant undertook to take advantage of the fact that the paper title to the premises was iii him.. It is urged that Under the provisions of section 74 of the Real Property Law (Laws of 1896, chap. 547), the plaintiff can have no-equitable rights in the premises. ■ This section provides that a grant of real property for a valuable consideration to one person, the consideration being paid by another, vests title in the grantee, and no use or trust results from the payment to the person paying the consideration, or in his favor; and the defendant urges that the fact that the plaintiff may have paid the larger portion of the purchase price, under a verbal agreement between the purchasers, gives the latter no rights in the premises. But section 74 of the Real Property Law must be read under the limitations imposed by section 234 of the same act, which provides that “ Nothing contained in this, article abridges the powers of courts of equity to Compel the specific performance of agreements, in cases of part performance,” and it being established that the parties to this verbal agreement have performed the contract up to the point where it became the duty of the defend-, ant to acknowledge and respect the rights of the plaintiff, we aré of opinion that it is within the power of' a court of equity to compel-the defendant to- perform this duty. ' The plaintiff and defendant purchased this property' and entered into possession as tenants in common ; they have each contributed to pay off the liens upon the same, and have exercised rights of ownership over the premises, with- an understanding, between them that it was owned jointly, the title being taken in the name of the defendant for reasons' which were satisfactory to themselves; and because it would be contrary to good conscience and the principles of equity, the defendant cannot be permitted to take advantage of the record title to deprive the plaintiff of his rights in the property. The learned court below aptly says that “ the grounds of this decision are that the defendant upon the purchase thereof, orally agreed to hold one undivided half of said premises in trust for the plaintiff who contributed to the purchase thereof, and has expended various sums for the benefit of said property upon the faith of the defendant’s said agreement,, and it is necessary to imply a trust as aforesaid to prevent a fraud.” There has been a partial performance of the agreement; the plaintiff has been put "into a position where he must suffer loss by reason of the bad faith of the defendant unless equity interposes to prevent the fraud,- and it is the high duty of this court to act in such a, case, even though the diligent search of the defendant’s counsel has failed to discover an analogous case or an exact precedent. It is the special merit of a court of equity that it moulds its judgments to the facts as they exist, and by the application of well-settled rules, reaches the ends of justice where the law is powerless to grant relief. (Canda v. Totten, 157 N. Y. 281, 287, 288, and authorities cited.)

We are unable to reach the conclusion that the issues raised upon the trial of the present action are res adjudicata • we do not think the action brought in September, 1899, involved the same issues as those presented in the case at bar, although some of the allegations of the pleadings' are very similar.

While the evidence of the value of the subject-matter involved is not as clear and definite as might be desired, we are of the opinion that thefe was sufficient evidence to show that the property interest of the plaintiff in the premises was worth at least $2,000, and this would seem to justify the award of a special allowance upon this amount. (Black v. Brooklyn Heights R. R. Co., 32 App. Div. 468, 474, and authority cited; Woodbridge v. First National Bank 45 id. 166, 172; Deuterman v. Gainsborg, 54 id. 575, 581.)

The judgment appealed from should be affirmed, with costs.

All concurred, except that Bartlett, J., is of the opinion that the testimony as to the value of the property is too indefinite to afford any basis, for an extra allowance.

Interlocutory judgment affirmed, with costs.  