
    Richard H. Pritchard, Respondent, v. John T. Pritchard and Ada Pritchard, His Wife, Appellants.
    Second Department,
    October 12, 1909.
    Beal property — contract — payment of money for purchase of lands in consideration of agreement to support — equitable lien — remedies of promisee — remedy at law adequate.
    Although a son purchased lands in his own name with moneys received from his father in consideration of a promise to furnish his father with a home and care for the remainder of his life and thereafter by reason of quarrels between the parties refused to put the contract in writing, as he had agreed, the father is not entitled to a decree adjudging that the son holds the lands in trust and charging them with an equitable lien for the purchase price, if no trust or lien was contemplated in the original agreement. No trust resulted when the son took title in his own name as it was done with the father’s knowledge and pursuant to' the agreement.
    Under the circumstances equity will not fasten a trust ex maleficio upon the gift for the purpose of compelling the donee to perform his promise.
    
      It seems, that the father has an action at law to recover the money paid, or an action for the breach of the agreement.
    As such remedies at law are adequate, equity will not impress a lien upon the lands.
    Ríen, J., dissented.
    Appeal by the defendants, John T. Pritchard and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of March, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      William B. Hurd, Jr., for the appellants.
    
      August P. Wagener, for the respondent.
   Miller, J.:

This is an appeal from a judgment adjudging that the defendant holds title to certain real property in trust for the plaintiff and that the plaintiff has an equitable lien thereon for the sum of $4,200, with interest from November 22, 1906. The appellants, appealing upon the judgment roll, contend that the findings do not support the judgment. In substance, the findings, so far as material, are that the plaintiff, now upwards of seventy years of age, is the father of the defendant John T. Pritchard; that in November, 1906, the plaintiff delivered to the defendant $4,200 for the purchase of the real property in question, pursuant to an agreement by which the plaintiff was to advance said sum, in consideration whereof the defendant promised and agreed to “furnish this plaintiff with a home, all the necessary comforts of a home, board, lodging, washing and attendance for and during the remainder of his natural life, and in case of illness to furnish plaintiff with medical attendance, medicine and nurse, and in case of death to give plaintiff a decent and proper funeral and burial; ” that it was also agreed that said agreement should be put in writing and that the title to said premises should be taken in the name of the defendant John T. Pritchard; that subsequently the said defendant and the defendant Ada Pritchard intermarried; but that the defendant John T. Pritchard has refused to sign or execute such agreement, although requested so to do by the plaintiff; that “ thereafter plaintiff, in accordance with the terms and conditions of the agreement hereinbefore mentioned, went to live at the residence of the -defendant John T. Pritchard, and remained there until about March 3d, 1908, when the plaintiff left the defendant’s home, after various and different disputes and quarrels between the plaintiff and the defendants, and by reason of the neglect, want of care and cruelty on the part of the defendant J ohn T. Pritchard, and his wife, the defendant Ada Pritchard, to provide board and a suitable bed or room to sleep in; ” that the plaintiff demanded a return of the moneys contributed as aforesaid or a conveyance of the premises purchased therewith; that the plaintiff advanced said moneys, believing that the defendant John T. Pritchard would execute said agreement in writing and would carry out the terms and conditions thereof. There is no finding that the plaintiff was to have a home on the premises in question and none that the defendant has refused to provide the plaintiff with a home elsewhere. There is a finding that the plaintiff has no adequate remedy at law, but there is no finding that the defendant John T< Pritchard is not financially responsible.

Mo trust resulted from the taking of the title in the name of the defendant John T. Pritchard, for that was done with the plaintiff’s knowledge and pursuant to the agreement upon which the plaintiff relies. There ivas no executory agreement that the said defendant should hold the title as trustee or that the property purchased should constitute a trust estate to provide for the plaintiff’s support, which, though void in law, equity, to prevent the abuse of a relation of trust and confidence and the consummation of a fraud, might seize hold of for the purpose of impressing a constructive trust, as in Wood v. Rabe (96 N. Y. 414) and Goldsmith v. Goldsmith (145 id. 313). Mor is it a case where equity will fasten a trust ex maleficio upon a gift for the purpose of compelling the donee to perform the promise in reference to it and but for which it would not have been made, as was the case of Ahrens v. Jones (169 N. Y. 555). The plaintiff never owned the premises in question. He advanced the purchase price in consideration of a promise to support him, but, as already pointed out, there is no finding that that promise in any way contemplated a trust in the property purchased or a lien upon it. Nor is the case like Leary v. Corvin (181 N. Y. 222), in which,, though there was no’resulting trust for the reason that the plaintiff had not contributed the whole or some aliquot part of the consideration, and no executory contract such as equity could enforce to prevent fraud and the abuse of confidence, yet the court impressed an equitable lien upon the property for the amount of the plaintiff’s contribution and interest. The difference is that in Leary v. Corvin there ivas an agreement, void to be sure in law, that the plaintiff should have the property upon the death of the father and mother, pursuant to which and because of the existing relation of trust and confidence between-the parties, the father had obtained the plaintiff’s money and the father had taken the title in his own name, without the plaintiff’s knowledge. While the case did not come within the rule of constructive trusts, the court, to prevent a failure of justice, did impress a lien. The trial court in this case found that the plaintiff charges that the defendant John T. Pritchard made the representation that he would execute such an agreement and take proper care of this plaintiff until his death, * * * for the purpose and with the intent of cheating and defrauding this plaintiff out of the money to be furnished and which was furnished; ” but there is no finding that that was the fact. On the contrary, the findings tend to show that the present-difficulty results from disputes and quarrels which have occurred subsequent to the making of the contract.

Doubtless, the plaintiff might treat the defendant’s refusal to execute the written agreement as a breach and sue to recover back the money paid. If there has been a refusal to perform the agreement made, and I do not think the findings show that there has been except in reference to the execution of the written agreement, the plaintiff can sue for the breach "of the agreement; and there is no fact found - which supports the conclusion that he has not an adequate remedy at law, or that he will be unable to obtain satisfaction of any judgment at law which he may obtain. Indeed, the defendant has at least the real property in question.

I do not say that, if it were necessary to protect the plaintiff’s rights, equity would not impress an equitable lien upon the premises iii question. • But certainly, before the exercise of such remedial jurisdiction, it should plainly appear that he has no adequate remedy at law. «

The judgment should be reversed.

Jenks, Gaynor and Burr, JJ., concurred; Rich, J., dissented.

Judgment reversed and new trial granted, costs to abide the final award of costs.  