
    George McArthur, as Committee, etc., of Ebenezer Larmouth, Resp’t, v. Henry Gordon et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 7, 1889.)
    
    1. Trust — Evidence declaratory oe — 2. R. S., 135, § 6 — Laws I860,, chap. 322.
    Where an instrument declaring a trust is properly executed according to the requirements of the statute, such paper is evidence that the trust was duly declared and also of its terms.
    
      2. Same—Instrument declaring construed—1 R. S., 728, § 55.
    Ellis McDouall, the mother of Ebenezer Larmouth, by her will, devised' all her property in trust, the rents and profits thereof to be applied to the use of her son during his life, and after his death gave an absolute estate therein to Gordon. Subsequently she conveyed by warranty deed all her property to Gordon. After the death of Mrs. McDouall, Gordon executed, and placed upon record, an instrument declaring a trust, wherein, in consequence of the real estate conveyed to him by Mrs. McDouall, he bound Mmself to appropriate for the maintainance of Larmouth, during his life, the rents, less the necessary expenses of the estate, and in case of a sale of the property, made this a charge upon it during Larmouth’s life. Subsequently Gordon conveyed the property to defendant Davis, the deed containing a condition subjecting it to the charge as declared by the said instrument of trust, luid, that the instrument placed upon record by Gordon was a valid and binding declaration of trust, and related back to the deed from Mrs. McDouall to himself.
    3. Same — Writes statute restricting conveyance does not apply— 1 R. S„ 728, § 65.
    
      Held, that the declaration of trust being separate from the conveyance from Mrs McDouall to Gordon, section 65 of the Revised Statutes does not apply, and he has power to sell the premises.
    ’ 4. Same—Record op notice to subsequent grantee—1 R. S., 762, § 38.
    
      Held, that its record was notice to a subsequent grantee, and such grantee takes the premises impressed with the trust and subject to it.
    5. Same—Admissibility op paroi evidence.
    
      Held, that paroi evidence was admissible to identify persons, parties and the subject-matter.
    ■6. Same—When beneficiary may enforce performance op—1 R. S., 728,- § 60—Code Civ. Pro., § 338.
    
      Held, that Larmouth, the beneficiary named in the said instrument of trust, can enforce the trust in equity at any time within ten years after any default.
    7. Same—When terms cannot be changed.
    
      Held, that since the trust had been impressed upon the property its terms could not, in anywise, be diminished, nor its performance be made to depend upon a new condition.
    Appeal from a judgment in favor of the plaintiff entered upon the decision of the court upon the trial before the Washington county special term.
    The complaint alleged that the defendant Gordon was the owner, as trustee, of a farm charged with a trust in favor of Ebenezer Larmouth to apply the rents thereof to the support of the latter during his life; that he had defaulted in making such application and had sold the farm to the defendant Davis, and suffered him to receive and enjoy the rents and profits thereof. Judgment was asked against both defendants for the amount of the misapplied rents and profits and for other relief. The answer denied the existence of the trust and alleged that proper provision had been made for Larmouth’s support, which he refused to accept.
    On the 16th day of October, 1814, Mrs. Ellis McDouall conveyed her farm of forty-five acres to the defendant Gordon by warranty deed “in consideration of one dollar and other valuable considerations to her duly paid.” Mrs. McDouall, at that time, was old and feeble and resided upon this farm with her adult son, Ebenezer Larmouth, who was feeble in-intellect and dependent upon her for support. Gordon, the grantee, was her pastor. She and her son continued to reside upon the farm after the conveyance and until her death, which occurred March 8, 1876.
    On the 19th day of April following Mrs. McDouall’s death, the defendant Gordon executed, under seal, and acknowledged and caused to be recorded in the county clerk’s office, the following instrument:
    “Know all men by these presents, that because of certain real estate duly conveyed to me by Ellis McDouall, late of the town of Jackson, Washington county, New York, I, Henry Gordon, of Coila, Washington county, New York, do, of my own free will and accord, hereby consider myself, heirs, executors or administrators, holden and firmly bound to appropriate or cause to be appropriated for the comfortable support of Ebenezer Larmouth during his life; all the rents, after deducting necessary expenses, of said real estate; or if said real estate should be sold, the proper maintenance in board and clothing should be first lien upon said real estate during the life of said Ebenezer Larmouth; the subscriber to this bond distinctly asserts that its obligations on him are limited to the rents of said real estate, or to the interest on' the purchase money, should said real estate be sold.
    “Signed with my hand and seal, this 19th day of April, 1876. HENEY GOEDON. [l. s.]”
    This farm was the only real estate conveyed to Gordon by Mrs. McDouall, and the only real estate she had had in her life-time.
    On the 22d day of January, 1877, the defendant, Gordon, conveyed the said real estate to the defendant, Davis, by deed expressed to be in consideration of $500, and the covenants and conditions therein contained. The deed was executed by Gordon and Davis and contained the following covenants: “This conveyance is made subject to the following conditions, viz.: That the said party of the second part shall provide and furnish Ebenezer Larmouth, of the town of Jackson aforesaid, during the natural life of said Larmouth, suitable clothing, food, and necessary lodging, medical attendance and medicine, which said clothing, food, lodging, medical attendance and medicine, the said party of the second part, for himself, his heirs, executors and administrators, hereby, covenants and agrees to and with the said party of the first part, to furnish to the said Larmouth as aforesaid. And it is hereby mutually covenanted and agreed by and between the parties to these presents, for themselves, their heirs, executors and administrators, that the support and maintenance of the said Larmouth as aforesaid shall constitute and remain an indefeasible lien upon the premises, hereby conveyed,.' during the natural life of the said Larmouth.”
    Davis and his wife at the same time executed and delivered to Gordon a mortgage to secure the payment to him of four hundred dollars and annual interest thereon “the interest to be used for such purposes as said Gordon and James Maxwell may mutually agree upon;” the mortgage further reciting as follows:. “This grant is also intended as security for the support and maintenance by the said Robert Davis, his heirs, executors and administrators, of Ebenezer Larmouth during the natural life of said Larmouth, according to the condition of a bond this day executed and delivered by the said Robert Davis to the party of the second part.”
    The bond provided that Davis “shall provide and furnish Ebenezer Larmouth, during his natural life, suitable clothing, food, lodging and necessary medical attendance and medicine according to a condition" and covenant contained in a deed of conveyance made and executed by Henry Gordon and wife and the said Davis.”
    Davis took possession of the farm and leased the dwelling house and a part of the land to Plunkitt, upon the agreement that Plunkitt should support Larmouth on the premises.
    The agreement between Gordon and Davis was that Davis should support Larmouth on the premises. Davis and Plunkitt offered Larmouth support upon the premises; but Larmouth, being of unsound mind, conceived that he was the owner of the premises, and refused to live upon them under permission of Davis or Plunkitt, and wandered away and was kept alive by the kindness of friends and kindred. Davis paid Gordon the interest as it fell due upon the $400-mortgage, but nothing was applied from the interest or from the income of the farm towards Larmouth’s support. Gordon collected nothing beyond the interest from Davis. The plaintiff was appointed committee of the person and estate of Larmouth in March, 1877, and after demanding from Gordon that he account and pay to him the income and profits of the farm from Mrs. McDouall’s death, upon leave of the court, brought this action.
    
      A. D. Wait, for app’lts; M. Hale, for resp’t.
   Landon, J.

The Revised Statutes provide that no trust concerning lands shall be declared unless by operation of law or by a deed or conveyance in writing subscribed by the party declaring the same. 2 R. S., 135, § 6. But chapter 322, Laws 1860, provides that the above provision of the; Revised Statutes shall not be construed, “to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same.’ “Any writing subscribed by the party declaring the same,” are words broad enough to embrace the writing subscribed by the defendant Gordon, and placed upon record after Mrs. Mc-Douall’s death; and also the deed given by him to Davis in 1877.

The statute makes no requirement as to the time when the writing shall be made or what becomes of it after it is made; it excludes paroi evidence, but admits written evidence provided the writing is subscribed by the party declaring the trust. It is of no consequence, therefore, that the writing subscribed by Gordon was not contemporaneous with the deed to him, or was never delivered by him to any one except the county clerk; the only material facts are, that the writing exists, properly subscribed, and that it declares a trust. These facts being undisputed the paper is evidence that the trust was duly declared, and, also, of its terms. Cook v. Barr, 44 N. Y., 156; Van Cott v. Prentice, 104 ib., 45; 5 N. Y. State Rep., 604; Wright v. Douglass, 7 N. Y., 564.

The defendant, Gordon, by the sealed instrument subscribed by him April 19, 1876, declared to “all men by these presents, that because of certain real estate duly conveyed to me by Ellis McDouall, I * * * consider myself * * * bound to appropriate, or cause to be appropriated for the comfortable support of Ebenezer Larmouth during his life all the rents, after deducting necessary expenses, of said real estate.”

That this instrument was executed and placed on record by Gordon, in testimony of his agreement with Mrs. Mc-Douall, and to declare the object and conditions of her deed to him, was an inference of fact sufficiently supported by the deed and declaration themselves, construed in the light of the circumstances and of the relations of the parties to each other, and was greatly strengthened by the declarations of Gordon himself, made immediately upon the death of Mrs. Douall.

This instrument is a declaration of trust. Gordon thereby, in effect, declares himself to be the trustee of an express trust to receive the rents of the farm and apply them, less the necessary expenses, to the use of Ebenezer Larmouth during the life of the latter. 1 R. S., 728, § 55.

The title to the farm is in Gordon; Larmouth takes no estate or interest in the lands, but may enforce the performance of the trust in equity. Id., § 60. The declaration of trust is separate from the conveyance to Gordon, and, therefore, section 65 of the statute, declaring that where the trust is expressed in the instrument creating the estate, every conveyance or act of the trustee in contravention of the trust is void, does not strictly apply to Gordon’s conveyance to Davis. The declaration of trust itself permits a sale of the premises. It provides “ that if such real estate should be sold, the proper maintenance in board and clothing should be a first lien upon said real estate during the life of said Larmouth. The subscriber to this bond distinctly asserts that its obligations on him are limited to the rents of said real estate, or to the interest on the purchase money. Gordon could, therefore, sell the premises. The declaration of trust, however, was recorded. The recording act embraces every instrument in writing by which the title to real estate may be affected in law or equity. 1 R„ S., 762, § 38. This declaration did affect Gordon’s title in equity, and, therefore, its record was notice to Davis, his subsequent grantee. Bacon v. Van Schoonhoven, 19 Hun, 158; S. C., 87 N. Y., 446; Grandin v. Hernandez, 29 Hun, 399. The deed to Davis shows that he had actual notice of a trust, and he therefore was put upon inquiry as to its extent. He took the premises impressed with the trust and subject to it. The conveyance to him appears to have been made in order practically to secure its execution. But Gordon, having accepted the trust, could not divest himself of it without leave of the court. Brennan v. Wilson, 71 N. Y., 502.

Davis held the land subject to the trust in favor of Larmouth, that its net income should be applied by the trustee to Larmouth’s support. Davis gave a mortgage of $400> to Gordon upon the premises, to be paid in 1892, with annual interest in the meantime.

Davis paid the interest, twenty-four dollars per year, to Gordon. Davis is not responsible for Gordon’s failure to apply this interest to Larmouth’s support. If Davis had paid the proper rent or balance over the interest to Gordon, he would not be liable for Gordon’s non-application of it toLarmouth’s support, since Gordon is trustee and not Davis.

But since with full notice he has had the fund from which the maintenance was to be raised, and he has not raised it, except the twenty-four dollars per year, he is in default, primarily it may be admitted, to Gordon, the trustee, but equitably to Larmouth the cestui que trusty and since Davis and Gordon made the contract whereby Larmouth was relegated to Davis for support, and Davis made a contract whereby Larmouth was transferred to Plunkitt, and the result of the several contracts was that Larmouth got nothing, Davis may be charged as a, co-wrongdoer with Gordon, to the extent that Davis still retains what Larmouth should have received. Story’s Eq., § 1131, a.

Thus, Gordon is liable to the extent of the entire default, and Davis, as his coadjutor, from the date of his purchase less twenty-four dollars per year.

The trial court has measured that liability at the rate of $175 per year, from March 6, 1876. Davis’ liability is for one year less. Complaint is made that it is an exorbitant allowance. It seems to be within the evidence, and we do not feel authorized to reduce it.

The statute of limitations is interposed. The statute has not begun to run with respect to the trust itself, for that has not been repudiated, and the trust remains in full force. Lammer v. Stoddard, 103 N.Y., 672; 4 N.Y. State Rep., 225.

The sixtieth section of the statute of Uses and Trusts, above cited, authorizes Larmouth to enforce the performance of the trust in equity. He has at least ten years after any default to enforce his equitable remedy. Code Civ. Pro., § 388. Ten years from his mother’s death had not elapsed when this action was commenced.

The defendants complain that paroi evidence was improperly received.

It was competent to give sufficient evidence of the surrounding circumstances to enable the court to ascertain who the parties were, what were their relations to each other, and what farm it was they were dealing with; in other words, sufficient to identify persons, parties, and subject matter. The trust itself is that which the writing declares and defines. Since the trial court properly construed the writing and adjudged its effect, it is immaterial whether the case in this respect was cumbered with improper evidence.

The defendant Davis claims that by his contract with Gordon he was only bound to furnish Larmouth with maintenance upon the farm itself, and that he was ready and offered to do this, but that Larmouth refused to accept it, and that if Larmouth did not receive support, it was his own fault. The answer to this is that since the trust was impressed upon the farm, it was incompetent for Gordon to make any contract or agreement with Davis whereby the terms of the trust should be in anywise diminished, or its performance made to depend upon a new condition. And this the law presumes that Davis knew, and therefore knew the risk he took when he stipulated for the new condition. The first and unconditional income from the farm was due to Larmouth, and when Davis took it he undertook that he would not defeat Larmouth’s right

The judgment is in the main right, but needs some modification. No vendor’s lien exists in favor of Larmouth. He was not the vendor, bur, if we may so speak, he was the vendee of an equity in the premises The statute already cited defines his estate and prescribes his remedy. Section 60, supra.

The title to the farm is in Davis, subject to the execution of the trust. His title is subject to sale upon execution. Gordon is still trustee, and his removal is not asked. For aught we know he and Davis, instructed by this judgment, will be zealous in the full performance of the trust. If it shall be necessary to remove the trustee and appoint another, and commit the custody of the farm to his possession during the life of Larmouth, the facts justifying, such action do not now fully appear.

The judgment against Gordon is affirmed as to the-amount of his liability. While we see no escape from this-conclusion, we are impressed with the many circumstances of the case which show that Gordon sought to make provision for Larmouth, and that his failure to do so has been of little advantage to himself. We therefore in our discretion direct that the costs of the respondents be paid from the proceeds of the judgment.

The judgment against Davis must be reduced by deducting $175 for the year ending March 6, 1877, and interest to the date of the entry thereof, and also by twenty-four dollars per year from March 6, 1878, with interest to the entry of the judgment. So reduced, the judgment is against him jointly with Gordon, and is affirmed without costs in this court. The provision for the sale of the premises otherwise than upon execution is stricken from the judgment.

The order to be settled in accordance with this opinion.

Learned, P. J., and Ingalls, J., concur.  