
    Hoar et al. v. Hoar.
    
      (Supreme Court, General Term, Second Department.
    
    May 14, 1888.)
    Trusts—Resulting Trusts—Purchase or Land by One and Conveyance to Another.
    Where land is purchased by one, and at his request the deed is made to another, under 3 Rev. St. N. Y. (7th Éd.) p. 3181, § 51, providing that in such cases the title shall vest in the grantee, though 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 becomes vested in the grantee, and no trust results in favor of the purchaser.1 Following Everett v. Everett, 48 N. T. 318. Dykman, J., dissenting.
    1See note at end of case.
    Appeal from circuit court, Kings county; Brown, Justice.
    This was an action to determine adverse claims to real estate, brought by William A. Hoar and others, by guardian, against William H. H. Hoar. Verdict and judgment for defendant, and plaintiffs appeal. 3 Rev. St. Y. Y. (7th Ed.) p. 2181, § 51, provides that “where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance.”
    
      Sidney 3. Stuart, for appellants. T. F. Bush, for respondent.
   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 the 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 Rev. St. (7th Ed.) 2181, p. § 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 previous to the conveyance being made. The relation of the parties was that of mortgagor and mortgagee. The case of Ryan v. Box 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 H. 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, 40* N . Y. 159; Niver v. Crane, 98 N. Y.40; chapter 322, Laws 1860; 3 Rev. St. (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.

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 oncle 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 N. Y. 260; Ryan v. Dox, 34 N. Y. 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.

NOTE.

Resulting Trusts. When a conveyance is made to one person, the consideration for which moves from another, a trust results in favorof the latter. Bigley v. Jones, (Pa.) 7 Atl. Rep. 54; Donlin v. Bradley, (Ill.) 10 N. E. Rep. 11; Harris v. McIntyre, (Ill.) 8 N. E. Rep. 182; Springer v. Young, (Or.) 12 Pac. Rep. 400; Smith v. Brown, (Tex.) 1 S. W. Rep. 573; Bedford v. Graves, (Ky.) Id. 534; Ward v.Matthews, (Cal.) 14 Pac. Rep.604; O’Connor v. Irvine, (Cal.) 16 Pac. Rep. 236; Carter v. Challin, (Ala.) 3 South. Rep.313; Reynolds v. Sumner, (Ill.) 14 N. E. Rep. 661; Craig v. Turley’s Adm’r, (Ky.) 6 S. W. Rep. 648. And such trust results, even though the consideration has been in fact advanced by the grantee for the other pefson; the grantee holding the title as security for such advances. Barroilhet v. Anspacher, (Cal.) 8 Pac. Rep. 804; Walton v. Karnes, (Cal.) 7 Pac. Rep. 676. But see, to the contrary, In re Wood, 5 Fed. Rep. 443; Bear v. Koenigstein, (Neb.) 20 N. W. Rep. 104. An oral agreement to purchase for another at a bona fide sheriff's sale will not of itself raise a trust. Fraud at the time of the sale, or the payment of the purchase money, is necessary. Appeal of McCall, (Pa.) 11 Atl. Rep. 206. After the legal title has been conveyed to one who agreed to buy for another, the application of 'the latter’s money to pay notes for the purchase money creates no resulting trust in favor of the other. The trust must attach, if ever, at the time of the original conveyance. Beecher v. Wilson, (Va.) 6 S. E. Rep. 209.

Where a party, while acting as agent for another, collecting rents, paying bills, etc., buys land at the request of his principal, but takes the legal title in his own name, advancing the money himself, which the principal afterwards repays him, a trust results in favor of such principal and his representatives, under Civil Code Cal. § 853, providing that “when a transfer of real property is made to one person, and the consideration thereof is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made; ” it being sufficient if the money paid by the party taking the legal title was advanced as a loan. Heilman v. Messmer, (Cal.) 16 Pac. Rep. 766.

Where the brothers of a merchant take a lease in course of their management of his business, which he had intrusted to them, and pay the first month’s rent under it from his funds, treating the lease as his property during his life, but refusing, after his death, to assign the lease to his executors, equity will establish a resulting trust in the lease in favor of the decedent’s estate. Plant v. Plant, (N. J.) 13 Atl. Rep. 849.

Defendant, having a judgment lien on real estate belonging to plaintiff, entered into a paroi agreement with her to sell the property under the judgment, and bid it in for her, she to have a certain time to redeem. Held that, in default of payment of any ‘portion of the redemption money, there was no trust resulting, under the agreement, in favor of the plaintiff. Salsbury v. Black, (Pa.) 13 Atl. Rep. 67.

A resulting trust in real estate maybe proved by paroi testimony; but such proof must be full and clear. Lofton v. Sterrett, (Fla.) 2 South. Rep. 837; Walton v. Karnes, (Cal.) 7 Pac. Rep. 676; Mallagh v. Mallagh, (Cal.) 16 Pac. Rep. 535; Sullivan v, Sullivan, (Tenn.) 6 S. W. Rep. 876; P’Pool v. Thomas, (Ky.) 8 S. W. Rep. 198.  