
    William Jeremiah, Plaintiff, v. Rosina A. Pitcher, Defendant.
    (Supreme Court, Kings Special Term,
    June, 1897.)
    1. Void parol resultant trust.
    Where a real estate dealer conveys property to his daughter, for the reason, as stated by him, that, if he took the title to the property in his own name, he could not convey a good title, as his insane wife would be unable to release her dower, and the daughter takes the title upon these terms and with the agreement that she will convey to purchasers, upon his request, such real estate as the father shall buy, and the trust is not expressed in writing, it is void under section 6 of the Statute of Frauds; and, as its nature is that of a resultant trust, abolished by 1 R. S. 728, §§ 51, 52, providing that no use or trust shall result in favor of a person who pays the purchase money of property and who causes a conveyance of it to be made to another, * * * the father is without remedy.
    3. Equity — Subrogation.
    Where it appears, however, that title was taken to one of the parcels subject to a mortgage; that the daughter raised money by mortgage on other parcels at the time of their conveyance in order to pay a part of their purchase money; that the father afterward paid the interest and principal of these mortgages and caused them to be satisfied, and that he did this upon the faith of the oral agreement that the property was his and that his daughter would hold it for him, she will not be permitted to repudiate her agreement which involves no interest or estate in, or trust concerning, real estate, and equity will subrogate the father to the ownership of the mortgages which he paid and will permit them to remain in his hands as liens.
    This was a suit to have it adjudged that the defendant held the several parcels of real estate described in the complaint in trust for the plaintiff, and to require her to conv.ey the same to him, or his nominee. The defendant is the daughter of the plaintiff. He was a real estate dealer. His wife having become insane, he stated to the defendant that if he took title to real property in his own name he could not convey a full title thereto, as his wife could not join in the conveyance, and release her dower, and he requested the defendant to allow him to take title in her name to all real estate he should buy, she to convey it upon his request as he should find purchasers. She agreed to this, and the several parcels in question were conveyed to her by third parties at the request of her father, he paying the consideration. The trust was not expressed in writing. Title was so taken subject to a mortgage in -the case of one parcel, and the defendant raised money by a mortgage on the other parcels at the time of the conveyance to pay part of the purchase money. The plaintiff afterwards paid the interest and principal of said mortgages, and had them satisfied. Afterwards, the defendant refused to convey the property at the plaintiff’s request.
    P. H. Vernon, for plaintiff.
    F. D. Dowley, for defendant.
   Gaynor, J.

At common law there would be a resultant trust in favor of the plaintiff, from the fact alone that he paid the purchase money. But such resultant trusts were abolished by the Revised Statutes. 1 R. S. 128, §§ 51 and 52. No use or trust now results in favor of the person paying the purchase money, but causing the conveyance to be made to another. There being, therefore, no trust from the fact of such payment by the plaintiff, it was for him to prove the trust. That could only be in writing, by the Statute of Frauds. § 6. The oral evidence was received, but was incompetent to prove it. A way to prevent such a fraud as this case presents from being practiced under the very nose of the law would be welcome, but I find none.

The case is different in respect of the mortgages. The defendant permitted the plaintiff to pay them off upon the faith of the oral agreement that the property was his, and held for him. To repudiate such agreement in that respect is a fraud; and the prevention of fraud is a principal ground for relief in equity. The trouble about the breach of trust or fraud in respect of the ownership, is that the Statute of Frauds stands in the way of proving it. There is no such difficulty in respect of the subsequent payments of the mortgages, as no interest or estate in or trust concerning real estate is established in proving the oral agreement under which such payments were made; and the Statute of Frauds therefore does not apply.

Let the plaintiff be subrogated to the ownership of the mortgages which he paid, and let them be liens in his hands.

Ordered accordingly.  