
    Household Sewing Machine Company, App’lt, v. Mary Ellen Vaughan and Richard F. Vaughan, Impleaded, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    Title—Equitable conversion—Money paid for the purchase of property—Failure of title.
    Charles O. Link, an infant, was the owner in fee of the premises in question, as heir of his father. In 1864, his mother, Elizabeth Link and grandfather Matthew Ottman, conveyed the premises to Mary E. Vaughan, wife of Richard F. Vaughan, for $1,200, $200 in cash, the remainder being secured by mortgage. Mary E. Vaughan went into possession and so remained until her death. She died intestate, leaving her husband and three children. One of these children subsequently died intestate. Thereafter in 1870, her children joined in a quit-claim deed to their father. Previously in. 1869, he had married a second wife, the defendant, Mary Ellen Vaughan. In 1870, proceedings were instituted in the county court, to sell the interest of the infant Link in the premises. These proceedings resulted in a conveyance by Matthew Ottman, as special guardian, to Mary Ellen Vaughan, and Elizabeth Link released her dower right. The consideration was the same $1,200 formerly paid by Richard F. Vaughan. Atthat time he had no creditors. In 1885, the plaintiff, having recovered a judgment against the defendant, Richard F. Vaughan, issued execution, which execution was remmed unsatisfied. This action is brought to reach the one-third interest of the property, which it is claimed vested in the defendant, Richard F. Vaughan at the death of Robert Vaughan, one of the children of Mary E. Vaughan. Held, that the money paid for the premises did not become a fund for the benefit of Mary E. Vaughan. That on her death Richard F. Vaughan, after obtaining the quit-claim deed was the owner of the entire estate, as to all the world, except the infant Link, whose estate had never been divested. That the money originally paid, did not, by equitable conversion, become real estate, and on the death of Mary E. Vaughan, descended as such to her children.
    Appeal by the plaintiff from a judgment entered on the findings and decision of a judge at special term dismissing the complaint, with costs, against the plaintiff and certain defendants other than those named above.
    The facts about which there is no dispute, and as found by the court, are as follows :
    In 1832 the defendant, Richard F. Vaughan, intermarried with one Mary E. Bradley, with whom he lived as his wife from the marriage until her death, July 28, 1865, leaving issue of such marriage the defendants, George W. Vaughan and Elizabeth Shelp, and a son, Robert Vaughan, who afterwards married the defendant, Anna Vaughan, and died September 13, 1883, intestate, without issue.
    May 2, 1861, one Charles 0. Link, an infant, who had no general guardian, who resided with his mother, Elizabeth Link, and his maternal grandfather, Matthew Ottman, at Sharon, Schoharie county, Hew York, was the owner, in fee, as heir of his deceased father, of lots 20 and 21, section D., Jones’ tract, in Rochester, H. Y., subject to the unadmeasured dower of his mother therein. On or about said 2d day of May the defendant, Richard F. Vaughan, bargained with Matthew Ottman for the purchase of the lots at the price of $1,250, $200 down, and the balance in his bond to be secured by mortgage on the premises; and Matthew Ottman and Elizabeth Link executed and delivered to Richard Vaughan a deed, with covenants of warranty, purporting to convey the premises to Mary E. Vaughan, the wife of Richard F., and received therefor from him $200 cash, and his bond conditioned for the payment of the balance of the purchase-price, and a mortgage of the premises, executed by his wife and himself, conditioned to secure the bond ; which bond he afterwards paid, mostly after his wife’s death.
    After the delivery of the deed, Mary E. Vaughan entered into possession of the premises, and resided thereon with her husband until her death, all the parties supposing she had title to the said premises under such deed, and Richard F. continued in possession, and has ever since resided on the same, except a portion subsequently sold.
    July 26, 1870, the defendants Elizabeth Shelp, and George W. Vaughan and his wife, and said Robert Vaughan executed and delivered to their father, the defendant, Richard F. Vaughan, a quit-claim deed of the premises, which deed was never recorded.
    November 19, 1869, defendant, Richard F. Vaughan, intermarried with Mary E. Longfellow, with whom he has since lived on the premises, and who is the defendant, Mary Ellen Vaughan.
    August 22, 1870, proceedings were instituted before the county judge of Monroe county on the petition of Charles 0. Link and Elizabeth Link to sell the infant’s interest in the premises, and Matthew Ottoman was appointed special guardian to sell such interest.
    October 15, 1870, Matthew Ottoman, as such special guardian, under the direction of the county judge, executed, acknowledged and delivered to the defendant, Mary Ellen Vaughan, a deed dated that day, whereby he conveyed to her said lots 20 and 21; and on the same day Elizabeth Link executed and delivered to her a release of dower in said premises. Said deeds were both recorded October 31, 1870.
    The consideration for such conveyance was the same $1,250 which Richard F. Vaughan had paid Matthew Ottman for the deed to his first wife; all of which had been paid, and which Ottman held for the infant.
    On receiving such deeds, Mary Ellen Vaughan entered into possession of the land with her husband, and has been in possession thereof since, except a portion thereof since sold by her and for which she received the pay.
    July 2, 1885, plaintiff recovered judgment against defendant, Richard F. Vaughan, in the supreme court for $2,568.54, which was docketed in Monroe county clerk’s office the same day, and upon which execution was issued on the same day to the sheriff of Monroe county, who after-wards returned the same wholly unsatisfied.
    This action was commenced on or about October 16, 1886, to have the title to said premises still held by the defendant, Mary Ellen Vaughan, and the proceeds of that sale by her, adjudged to have been received and.held by her in trust for George W. Vaughan, Robert Vaughan and Elizabeth Shelp, as children and heirs at law of Mary E. Vaughan, deceased; and that upon the death of Robert Vaughan, his share, one-third of such property subject to the dower rights of his wife, Anna Vaughan, vested in the defendant, Richard F. Vaughan, and to have the said one-third applied to the payment of plaintiff’s judgment and costs.
    
      E. F. Wellington, for app’lt; G. T. Parker, for resp’ts.
   Dwight, J.

By the deed from the mother and the grandfather of the infant Link, all parties seem to have supposed that title passed to the lands in question. That title Richard F. Vaughan, the purchaser, intended to confer upon his wife, Mary E., and therefore procured the deed to be made direct to her. There seems to be no foundation for the theory of the plaintiff that he intended to give to her the money which was the consideration of the supposed purchase; or that, because he failed to procure for her title to the land, the money paid by him became a fund for her benefit and that of her children. His intention was to give her the land, and he supposed he had done so. He paid a small portion of the consideration down and gave his bond for the portion unpaid, and he and his wife took possession of the premises as her property. On her death, which occurred a year later, he remained in possession, as he supposed, as tenant by the courtesy; he continued to make the payments on his bond as they became due, and, five years after the death of his wife, took a deed from his children of all their interest in the property. Then he evidently considered himself the owner in fee of the entire estate, and so he was as to the heirs of his wife and all the world except the infant Link, whose estate in fee had never been divested. This he soon discovered. The full consideration of $1,200, which he had paid, remained in the hands of Ottman, the grandfather of the infant owner, who had assumed to act for the infant.

The fact was recognized that Vaughan had taken nothing by his purchase (beyond a possible right of action for the admeasurement of dower) except the use of the land; and, as against that, the infant owner had had the benefit of the use of the money. Thereupon Ottman and Mrs. Link set about making good the transfer of title, which they had previously attempted to make, for the consideration already paid; and to that end they took the proceedings in the county court which resulted in the conveyance by Ottman, as special guardian for the infant, of the latter’s interest in the real estate in question for the $1,200 already in the guardian’s hands. Mr. Vaughan having in the meantime married another wife, the defendant Mary Ellen Vaughan, caused the new deed to be made to her.

It is impossible to find in this statement of the case any foundation for the plaintiff’s claim to enforce a trust in favor of the creditors of Richard F. Vaughan in the lands so conveyed to the defendant, Mary Ellen Vauhan.

The theory of this claim seems to be that the fund paid by Richard E. Vaughan to Ottman, and which finally became the consideration for the conveyance to Mary Ellen Vaughan, was the property of the first wife; that, by “equitable conversión,”'it had become real estate and, upon her death, descended as such to her three children; that when the conveyance was made to Mary Ellen, in consideration of that fund, she took the title in trust for the children of the first wife; that when Robert, one of the children, died intestate and without issue, his share and interest descended to his father; and that so much of the estate is now held in trust for him.

This proposition cannot be maintained. The money never was the money of the wife. It was her husband’s money; and, when paid to Ottman and Mrs. Link, it became theirs. It was not obtained by them by fraud, nor paid to them under any mistake of fact; and it could not have been recovered back either by husband or wife.

The only claim that Mrs. Vaughan could ever have had against her grantors, was under their covenant of warranty, and that only in case of eviction. She was never evicted, but died in possession of the property. At that time only $200 of the consideration had been paid, and the remaining $1,000 and interest was afterwards paid by the husband for his own benefit. But it is clear that the wife never had any interest in any part of this fund; and no interest in it passed to her children either as heirs-at-law or next of kin.

And this may well be the end of the discussion, since it is the end of the theory upon which the plaintiff and the defendants, other than Richard E. Vaughan and his wife, seek to found their claim. If, under any possible theory of the case, any estate or interest in the land passed to the children of the first wife, it also passed from them by their quitclaim deed to their father.

The final disposition of the fund and of the title was very simple and consonant with equity and good conscience. Ottman, recognizing the moral obligation to make good to Vaughan the purchase of the land for which he had paid; and, still having the fund in his hands, was willing (with the consent of Mrs. Link) to account to Vaughan for the money in the new contract of purchase and sale made under the direction of the court. And so the matter was concluded; the infant owner and the doweress got the money, and the purchaser at last procured the title to the land to be conveyed to his appointee. In all of which no trust resulted in favor of the heirs of the first wife, nor of creditors (since, at that time, there were no creditors) of the party paying the consideration.

The judgment should be affirmed with costs.

Judgment affirmed with costs.

Barker, P. J., Haight and Bradley, JJ., concur.  