
    Alice M. Hoar and William A. Hoar, by Charlotte Hoar, their Guardian ad litem, App’lts, v. William H. H. Hoar, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    Real property—3 R. S. (7th ed.), 2181, § 51—Purchase by one in another name—Effect.
    The plaintiff’s father purchased the property in question. He paid the • purchase money and had the deed executed to the defendant as sole grantee. By the terms of the deed the grantee assumed to pay the mortgage. The deed and possession of the property were delivered to the plaintiff’s father and held by him until after his death, when the defendant obtained possession of the deed. There is evidence tending to show that the defendant consented to the taking of the title in his name under an agreement to give up the same upon request of the plaintiff’s father. Meld, the title passed and vested in the defendant and that he became the owner, and that no trust resulted in favor of the purchaser. Dykman, J., dissenting.
    Appeal from a judgment entered in Kings county in favor of the defendant, determining that he is the owner of and entitled to the immediate possession of the premises in question.
    
      Sidney H. Stuart, for app’lts; T. F. Bush, for resp’t.
   Pratt, J.

—This is an action to determine claims to real estate.

It seems the plaintiff’s father purchased the property for $3,500, subject to a mortgage for $1,800. He paid the purchase money and had the deed executed to this defendant as sole grantee. By terms of the deed the grantee assumed to pay the mortgage.

The deed and possession of the property were delivered to the purchaser and held by him until he died, on August 12, 1885. After his death the defendant obtained possession of the deed from a son, and the same was recorded.

The only question necessary to be determined is whether these facts bring the case within the statutes. 3 R. S. (7th ed.), 2181, § 51.

It is claimed by the appellant that the defendant, if he took it at all, received the land in trust for the purchaser and that to permit the defense by the statute would use the law to perpetrate a fraud, and he cites Foote v. Bryant (47 N. Y., 544), Carr v. Carr (52 N. Y., 260), Church v. Kidd (3 Hun, 265), and Ryan v. Dox (34 N. Y., 307).

The first case simply holds that it is lawful for the trustee who has received a conveyance where another party has paid the consideration to recognize the equity and make a declaration of trust or a conveyance. The case of Carr v. Carr decides that the statute referred to does not change the relations of the parties and applies the familiar doctrine that it is competent to show a mistake in a written instrument or that a deed absolute on its face was in fact a mortgage.

The case of Church v. Kidd is not in point as the relations of the parties were established by writings and the cestui que trust had an interest in the property to be protected previously to the conveyance being made. The relation of the parties was that of mortgagor and mortgagee.

The case of Ryan et al v. Dox was, also, one where the plaintiff had an interest in the property, which was about to be sold under a decree of foreclosure, and the defendant agreed to attend the sale and buy the property for the plaintiff and take the deed in his own name .for security only, and relying on this agreement the plaintiff agreed he would procure no other friend to attend the sale and the property was held at a price greatly below its value. In ‘this case the deed was simply a mortgage and the defendant was assuming to act as agent of the plaintiff.

There is, also, another line of cases, where the statute does not apply, where the title is taken in the name of a third party, without the knowledge of the party who furnishes the consideration; this point was, also, .decided in the case of Foote v. Bryant (supra). The case of Everett v. Everett (48 N. Y., 218), is decisive of the case at bar. That case holds that where one purchases land, and at his request the same is deeded to another, although the purchaser receives the deed, without disclosing the existence thereof to the grantee, and takes and retains possession of the land, yet by the deed the title passes and becomes vested in the grantee and under the prohibition of the statute of uses and trusts no trust results in favor of the purchaser. See, also, Gilbert v. Gilbert, 1 Keyes, 159; Niver v. Crane, 98 N. Y., 40; Chap. 322, Laws of 1860; 3 R. S. (7th ed.), 2326; Sturtevant v. Sturtevant, 20 N. Y., 39.

We think the defendant, on the facts, was entitled to judgment and the same is affirmed.

Barnard, P. J., concurs.

Dykman, J. (dissenting)

—This action was brought to determine the claims to real property, in which the defendant claims some interest, arising from the following facts:

William A. Hoar, the uncle of the defendant, bought the property and paid for it, and caused the conveyance to be made in the name of the defendant as grantee. The uncle, however, retained the possession of the property down to the time of his death, and the possession and control thereof has continued in the plaintiffs, who are his children, ever since.

There is proof sufficient to show that the defendant consented to the action of his uncle, in taking the title in his name under an agreement to give up the same upon request whenever certain differences between his uncle and his wife should be terminated.

Under these circumstances the defendant took the naked legal title only, while the actual ownership was in the purchaser, and a court of equity would compel the defendant to yield the title to the plaintiffs. Foote v. Bryant, 47 N. Y., 544; Carr v. Carr, 52 id., 260; Ryan v. Dox, 34 id., 307; Church v. Kidd, 3 Hun, 265.

We think the verdict should have been directed for the plaintiffs, and the judgment should be reversed and a new trial granted, with costs to abide the event.  