
    JAYNE v. BROWN.
    (Supreme Court, Appellate Division, Second Department.
    April 29, 1904.)
    1. Statute of Frauds—Agreement to Convey Lands—Enforcement in Equity.
    An oral agreement to convey lands will not be enforced in equity unless the failure to enforce it will work a fraud on plaintiff.
    2. Same—Evidence—Equities—Dismissal of Complaint.
    In a suit to enforce an agreement to convey lands to plaintiff, it appeared that plaintiff had formerly had title,- but that a mortgage on the land had been foreclosed; that plaintiff furnished a portion of the purchase money when the land was bought by defendant from the mortgagee, but that it was the proceeds of property, the title to which was in defendant, and that defendant secured a loan on her personal bond and a second mortgage, in order to raise the balance of the purchase money; and that since defendant acquired title she had consistently used and claimed the property as her own. Meld, that the bill was properly dismissed, the equities appearing to be with defendant.
    
      Appeal from Special Term, Suffolk County.
    Action by one Jayne against one Brown. From a judgment in favor of defendant, plaintiff appeals. Affirmed, on the opinion of Mr. Justice Smith at Special Term:
    The plaintiff has failed to establish to my satisfaction that there was any agreement or understanding between himself and daughter, either express or implied, that she should convey the property in question to him upon his request. No witnesses were present when the alleged agreement was made, and the denial of the defendant that said agreement was made is quite as credible as the testimony of the plaintiff, and more thoroughly and satisfactorily corroborated by the conceded facts in the case. If such oral agreement was made, it contravenes the statute of frauds, and will not be enforced by a court of equity, unless the failure to do so would work fraud upon the plaintiff. Both in a legal and moral sense the equities of the case are with the defendant. The plaintiff formerly had title to the property, but suffered it to become so heavily incumbered that it was foreclosed, and the title became vested in the mortgagee, the Mutual Life Insurance Company of New York. I am satisfied that, had jit not been for the personal efforts of the defendant, she would not have obtained title to the property. The plaintiff furnished $400 of the purchase money, but it was the proceeds of property, the title to which was in the defendant, and there is nothing in the case from which it may be determined that the title to that property became vested in her under such circumstances that the plaintiff had any legal claim upon the proceeds of its sale. The $400 was not sufficient, and the defendant secured a loan, upon her personal bond and a second mortgage, from Mr. Dutcher. The plaintiff had also solicited a loan from Mr. Dutcher, but it is apparent from the testimony that, had it not been for the defendant, the loan would not have been made by him. The plaintiff parted with nothing upon the faith of this alleged agreement', and incurred no personal obligation. It is apparent that, since the defendant took the title and went into possession, she has consistently used and claimed the property as her own. She has sold portions of it without consultation with the plaintiff, has kept it up and paid the taxes and interest, and, with true filial spirit, has maintained her father and mother on the premises. The property has increased in value since she took title thereto, and that probably furnishes an explanation for the cause of this litigation.
    Under all the circumstances of the case, to now deprive the defendant of the property would work a grave injustice to her, and I decide that the complaint must be dismissed upon the merits, with costs.
    Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.
    Maurice Breen (Wm. J. Lippmann, of counsel), for appellant.
    Fred Ingraham (James W. Treadwell, of counsel), for respondent.
   PER CURIAM.

Judgment affirmed, with costs, on the opinion of Mr. Justice Wilmot M. Smith at Special Term.  