
    GRAY against CROQUET.
    
      Supreme Court, Second District;
    
    
      February, 1868.
    Parol Trust.—Defense in Ejectment.
    In an action by a purchaser for value from a married woman, of land which her husband purchased, but which was conveyed to her in her own name, and which she afterwards conveyed to plaintiff, brought to recover possession of the land, a parol agreement between the husband and the wife, though made before the plaintiff’s purchase, that the land should be considered as belonging to a child of the husband and wife, and should be held by the husband in trust for the benefit of such child, forms no defense.
    Nor is the fact that the husband procured the conveyance of such property to his wife for the purpose of securing a home for himself and family in case of future misfortunes, any defense to such an action.
    Appeal from a judgment upon the report of a referee.
    This action was brought by George W. Gray against Alexander F. Croquet, to recover possession of a house and lot of land in Brooklyn.
    The complaint alleged that one Mary Olney was formerly seized and possessed of the premises in question. That, being so seized as aforesaid, the said Mary Olney, with her husband (George Olney), on or about March 1, 1859, conveyed the premises to one Mary Barlow. That on or about May 4, 1866, the said Mary Barlow conveyed the premises to one Isidore Cousselle. That on or about July 7, 1866, the said Isidore Cousselle conveyed the-premises to the plaintiff;—who was seized of the premises in fee simple, and was entitled to the possession thereof.. That the defendant was in possession of the said premises and' unlawfully withheld possession thereof from the plaintiff, &c.
    The answer, after putting in issue the conveyances from Mary Barlow to Cousselle and from Cousselle to the plaintiff alleged, in substance, the following facts:
    That at the time of the alleged conveyance by Mary Barlow to Cousselle (May 4, 1866), and also at the time of the alleged conveyance from Cousselle to the plaintiff (July 7, 1866), the premises which were enclosed were in the actual possession of one Nicholas L. Barlow, claiming under a title adverse to that of the grantor in said pretended deed. That Nicholas L. Barlow is the owner end possessor of said described premises by the defendant as his tenant, and was still living, and was a necessary party to this action. That the premises, subject to a mortgage, were purchased by Nicholas L. Barlow, and the title thereto taken in the name of Mary Barlow, who was the wife of Nicholas L., as and for a family residence, settlement and homestead, and the whole purchase money Was paid by Nicholas L. That it was agreed between Nicholas L. and Mary Barlow that they should live separate and apart from each other, and that Mary should deliver the possession of said premises to Nicholas L., and that he should hold and manage the same as a trustee for their infant child, and should collect the rents, issues and profits, and apply the net receipts to the maintenance and support of the child, and hold the property in trust for him. That in part performance of this agreement, Mary Barlow delivered the possession of said premises to her husband, who entered upon the performance and execution of the trust, and, as such trustee, rented the premises to the defendant, and had ever since held and occupied the premises as such trustee, adversely to Mary Barlow, and had executed the trust by the collection of rents, and management of the property, and the payment of the interest upon mortgage, and by applying the rents and profits to the support and maintenance of the cestiri qtoe trust. That Mary Barlow, subsequently to this agreement and to the delivery of such possession, eloped with a paramour, and fled from the country, and that subsequent to such elopement, Nicholas L. duly recovered judgment of absolute divorce, a vinculo matrimonii, in the supreme court against Mary for adultery. That the conveyances alleged in the complaint, from Mary Barlow to Isidore Cousselle, and from Couselle to the plaintiff, were made to the plaintiff without consideration, and for the purpose of fraudulently avoiding and evading the agreement, entered into for the benefit of said infant child, and with notice of the agreement, and of the performance thereof, and the possession of Nicholas L. Barlow as trustee, by the defendant as his tenant. Wherefore defendant claimed that Nicholas L. Barlow, as such trustee, was a necessary and proper party to this action ; and prayed judgment that the plaintiff might be decreed to execute a release to him as trustee for said infant child; and that he, and Mary Barlow, and Isidore Couselle, might be enjoined from making or setting up any claim to said premises, adverse to Nicholas L. Barlow as such trustee.
    Upon these facts the answer claimed that Nicholas L. Barlow as such trustee, and Mary Barlow were necessary parties to the action, and prayed judgment that the plaintiff might be decreed to execute a release to Nicholas L. Barlow as trustee for the child; and that the plaintiffs Mary Barlow and' Isidore Cousselle might be enjoined from setting up any claim to said premises adverse to Nicholas L. Barlow as such trustee.
    The case was tried before the city judge of Brooklyn, who found in substance as follows :
    That the plaintiff, by the conveyances set forth, became seized of the premises; and the defendant unlawfully detained them.
    That the premises were purchased in the name of Mary Barlow, then the wife of Nicholas L. Barlow, and that the sum of $1,000 was paid on the purchase money by said Nicholas L., the balance remaining on mortgage.
    That sometime in July, 1860 or 1861, Nicholas L. Barlow made a verbal agreement with Mary, that the property was to be considered as belonging to their child Robert N., and that Nicholas L. was to act as trustee.
    That Mary afterwards left her husband, who obtained a divorce from her in the supreme court.
    
      That Nicholas L. Barlow had since claimed to hold and lease the premises under said verbal agreement.
    And as matter of law, that the verbal agreement shown was wholly void and of no effect, and furnished no defense to the action, and that the plaintiff was entitled to judgment as claimed in the complaint.
    Upon these findings judgment for the plaintiff was entered, from which the defendant appealed.
    
      S. B. Brownell, for the appellant.
    I. The findings show that at the time of the deeds from Mary Barlow to Cousselle, and from Cousselle to the plaintiff, the land was in actual possession of a person claiming under an adverse- title. This rendered the deeds void under the revised statutes, part I., ch. 1, tit. 2, § 160; and part IV., ch. 1, tit. 6, § 6.
    II. The findings show that the property was purchased by Nicholas L. Barlow, the consideration paid by him, and a title taken in Mary Barlow’s name, “for the purpose of securing a home for Mary Barlow and himself,, in case of future misfortune in business And that the said Mary Barlow declared this purpose and trust in writing, subscribed by her. Under the statute of frauds, this is a perfect and complete declaration of the trust, showing an outstanding title in Nicholas L. Barlow for his life, which would prevent the plaintiff’s recovery ; and as the plaintiff in ejectment must recover on his own good title, and not on any defect in defendant’s title, the court below erred in denying defendant’s motion to dismiss the plaintiff’s complaint on this ground (Swinburne v. Swinburne, 28 N. Y., 568 ; 4 Kent, 318, 305; Lounsbury v. Purdy, 18 N. Y, 515; Fisher v. Fields, 10 Johns., 496, 505).
    III. The verbal agreement between Nicholas L. Barlow and Mary, found by the judge, that the property was to be considered as belonging to their infant child, and that Nicholas L. was to act as trustee, having (as the judge also found), been acted upon by him, by his holding and leasing the land as such trustee, for several years, and actually giving leases, in writing and subscribed by him as such trustee, under one of which leases, unexpired, the defendant was in possession, was not void, and constitutes a defense • to this action (Swinburne v. Swinburne, 28 N. Y., 568; Livingston v. Livingston, 2 Johns. Ch., 537). 1. Nicholas L. having assumed to act as trustee for his infant son, under said verbal agreement, could not, as against his son, or as against Mary, repudiate the trust, but was bound and liable to perform it (Switzer v. Spiles, 3 Gilm., 529; 4 Kent, 321). He having assumed to so act, and having incurred such liability under the agreement, it would be a fraud upon him to allow Mary to set up or insist upon the statute of frauds; which is never allowed to be used to effect a fraud (Ryan v. Dox, 34 N. Y, 306 ; Dygert v. Reimerschneider, 32 N. Y, 629). And the plaintiff not having shown the payment of consideration, is a voluntary grantee, and stands in Mary Barlow’s shoes (Story Eq., § 1256). 2. Nicholas L., having, under the parol agreement, entered upon possession as trustee, and given a lease to the defendant, is liable to him, upon the implied covenants of quiet enjoyment and possession, and will therefore be left liable to the defendant for heavy damages, in case specific performance of that parol agreement is not decreed (Lowry v. Tew, 3 Barb. Ch., 407). These two grounds, and the taking of possession, are, and any one of them is, sufficient to take the case out of the statute, and require the court to decree a specific performance.
    
      Henry Whittaker, for the respondents
    I. The first point made by the appellant is, that,the possession of Nicholas L. Barlow was such an adverse possession as rendered the deeds to Cousselle and to the plaintiff void under the provisions of the revised statutes relating to champerty. 1. All the authorities on the subject are clear that, in order to have that effect, the possession must be under a bona fide title, and that mere naked possession, or possession under a subordinate title, or one which does not embrace the whole fee, will not create a "bar under the statute (Howard v. Howard, 17 Barb., 663 ; Learned v. Talmage, 26 Barb., 443, 454; Cary v. Goodman, 22 N. Y., 170; Fish v. Fish, 39 Barb., 513; Hoyt v. Dillon, 19 Barb., 644). 2. To bring the case within the statute, the adverse title must be a title at law. A mere possible equity, not reduced into judgment, cannot be of any avail to defeat a legal right.
    II. The revised statutes provide that no “trust or power over or concerning lands or in any manner relating thereto, shall keréafter be created, granted, assigned, surrendered or declared, unless by act or operation of law or by a deed or conveyance in writing subscribed by the party creating ” the trust. The idea that the incidental mention, in an allegation of cruel treatment, in a complaint for divorce, of the words set out in the appellant’s second point is such a “ deed or conveyance ” as the statute contemplates, and that the signature to a subjoined affidavit of verification gives to the statement in a complaint, merely verified, but not subscribed by the party verifying, the effect of a conveyance, is preposterous. The cases cited by the appellant are all cases where the proceeds of property appropriated by equitable trustees, who had taken their title, in them own names without the Knowledge or consent of their cestuis que trust, were impounded in them hands.
    III. The verbal agreement for a trust, even if proved, is unquestionably void. The only ground on which the appellant claims any validity for it is that there was a part performance. But the alleged performance by Nicholas L.. Barlow, turns out, when examined, to be wholly visionary. At the time of the pretended agreement he was living on the premises with his wife, and there was no change of possession. The only acts done by Barlow have been to collect the income of the property, paying out of it only what he was obliged to pay for interest and repairs, and for one year’s taxes, and to put the balance in his pocket. He has allowed the property to be sold for taxes, and procured his partner to buy in and hold the tax titles, and has kept no accounts as trustee. In all the cases cited by the appellant something was done by the party seeking performance, in reliance on the agreement, from which the party from whom performance was sought had derived an absolute benefit which it would be inequitable for him to retain. In this case Nicholas L. Barlow has done nothing, but only derived benefit.
    IV. Even if the pretended verbal agreement were valid as against Mary Barlow, it cannot affect the plaintiff, who is a tona fide purchaser without notice. The deed from Mary Barlow to Cousselle, and also the deed from Cousselle to the plaintiff, are eacli made for a consideration of $4,000 recited to be paid; and this must be presumed to be so until the contrary is shown. There is not even a pretense of any evidence to show that such consideration was not paid, or that either Cousselle or the plaintiff had any notice of any such agreement as that alleged.
    V. The pretended agreement would also be void for the reason that a wife cannot convey to her husband (White v. Wager, 25 N. Y., 328, and cases cited).
    VI. An equitable right to a specific performance in favor of Nicholas L. Barlow, even if established, is no ground for a counter-claim in favor of the defendant (Code, § 150).
   By the Court.—Lott, P. J.

The plaintiff acquired the legal title to the qDremises in question under and by virtue of the deed to him from Isidore Cousselle. So far as apqiears from the case he was a tona fide purchaser for a valuable consideration, and there is no evidence that, at the time of the delivery of the said deed, the proj>erty was in possession of any person claiming under a title adverse to that of the grantor. It is shown that the said Nicholas L. Barlow himself bought the premises in 1856, of Mary Olney, then the owner thereof, and caused the conveyance thereof to be made to Mary Barlow, then his wife ; and the title thereto is regularly deduced by a deed from her to Cousselle, and from him to the plaintiff. No other deed or conveyance is shown. There is, therefore, no ground or foundation for the position assumed by the defendant that there was any claim of title adverse to that of the grantor at the time either of the two last mentioned deeds was delivered to the grantees, or that either of them was selling a '“pretended right” to the premises.

It follows that the plaintiff’s deed entitled him to a recovery of the premises, unless the matters to which I shall hereafter refer are sufficient to defeat his claims to the possession thereof. It is found by the court below “that sometime in July, 1860, or 1861, said Nicholas Barlow made a verbal agreement with said Mary Barlow that the said property was to be considered as belonging to their child, Robert N. Barlow, and that said Nicholas L. Barlow was to act as trustee.” "

That agreement does not constitute a defense. It was made long after Mrs. Barlow acquired the title, and being verbal, it did not create a valid trust; and assuming, as the defendant’s counsel insists, that such a trust as was thereby intended might be proved by any writing subscribed by Mrs. Barlow declaring the same, if is sufficient to say that there is no finding by the referee of any such declaration, nor is there any evidence thereof in the case. The statement made by her in the complaint in the action by her against her husband for a limited divorce referred to in the findings, conceding it to have been subscribed and sworn to by her, was not declaratory of such a trust. On the contrary, it shows that she, on a request made to her by her husband, on or about July 23, 1861, to sign a power of attorney to convey the premises to their son, refused to do it. It therefore, so far as it may be considered as having reference to the the matter at all, instead of establishing tends to prove the non-existence of such a trust.

Nor does the allegation in that statement that her husband, being unembarrassed in his pecuniary circumstances, purchased the property and caused it to be conveyed to her for the purpose of securing a home for her and himself, in case of future misfortune in business, prove any interest in him. It at most shows that the object in having the title to it taken in the name of the wife was to proteefc it against the claims of future creditors, and proves a clear intention on his part to vest it absolutely in her as her separate estate, without any interest therein or right thereto on his part, evidently contemplating then that he and his wife would continue to live together, and consequently that the securing a home to her would secure one to himself.

It was also claimed on the part of the defendant upon the trial that there had been a partial performance by Nicholas L. Barlow of the parol agreement, and that this fact constituted an equitable defense to the plaintiff’s recovery.

All that is found by the court below tending to show such performance by him, is that he has “ claimed to hold and lease said premises under said verbal agreement, and on the first day of May, 1866, by a lease in writing and subscribed by him as such trustee, he leased and rented said premises to the defendant for the term of one year at the annual rent of $500.”

No benefit is shown to have resulted to Mrs. Barlow from any of these acts, nor that a refusal by her to carry out the agreement will operate as a fraud on the husband. He has no personal interest in the execution of the trust intended to be created thereby, and no consideration whatever passed at the time the agreement was made. There is, therefore, no sufficient ground for extending the benefit' of the equities of the doctrine of part performance of an agreement to the defendant in this case. It is indeed doubtful whether that doctrine can be applied to a case of trust;—see Rathbone v. Rathbone, 8 Barb., 106.

The views above expressed lead us to the conclusion that none of the exceptions taken by the defendant on the trial or to the findings are well. taken, and that the judgment of the city court is right, and should be affirmed.

Judgment affirmed with costs. 
      
      Present, Lott, P. J., and Barnard and Tappan, JJ.
     