
    Mary Siemon v. Morris Schurck, Mary Austin and William Austin.
    A purchase of land was made for the benefit of the plaintiff, by her parents, and the purchase money was paid by the latter, the purchase being mads for the benefit of, and intended as a gift or advancement to, the plaintiff, who was an infant; and an absolute deed was executed to T. of the premises, for the benefit of the plaintiff, but without her consent or knowledge: Held, that although T. held the-legal title, by virtue of his deed, it was a mere naked title without interest, and one upon which a judgment against him could not fasten asían effective lien.
    
      Held, also, that the provisions of the fifty-first section of the article of the Revised Statutes, relating to uses and' trusts, were inapplicable to the case; and that the rule of the common law, as to resulting trusts in favoi of him who pays the purchase money on a conveyance being made t< another, was revived, and governed the rights of the parties.
    
      Held, further, that a Writ in equity would lie, by the plaintiff’, as the equitable owner of the premises, to enforce her rights as such, and to restrain the prosecution of an ejectment suit brought by parties claiming under a judgment against Y., with notice that the consideration for the deed to Y was paid by others.
    And that an action for such equitable relief was not barred because the plaintiff might have interposed her claim as a defense in the ejectment suit*
    The language of the statute, declaring 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, is not necessarily prohibitory of a resulting trust for the benefit of a third person in whose favor, for family or other lawful and sufiScieht reasons, it is deemed proper to make som < provision.
    
      Appeal from a judgment in favor of the plaintiff , rendered in the Supretne Oourt.
    
    The case is reported in 33 Barb. B. 9. The premises •which are the subject of this action were conveyed to George F. H. Youngs by Frederick W. Weiss, by an absolute deed on the 17th March, 1847. The price of the property was $2,000. $1,000 of the purchase money was handed to George H. Siemon by his wife, the mother of the plaintiff. That sum, together with the additional $1,000, was paid by Mr. Siemon to Weiss, the grantor, The $1,000 paid by Mr. Siemon was subsequently repaid to him by Youngs, who raised the money for that purpose by mortgaging the premises. Youngs took the conveyance at the request of Mr. and Mrs. Siemon, to hold for the benefit of the plaintiff; but the plaintiff was then a minor, and had no knowledge of, and gave no consent to, the transaction. On the 5th March, 1849, Morris Sohurck recovered a judgment against Youngs for $182.50 in the Yew York superior court, which was docketed on the 6th March, 1849, in Kings county. This judgment was assigned to William Austin on the 20th June, 1853. On the 23d August, 1853, all the right and title of Youngs Was sold under an execution, on the judgment, at sheriff’s sale, and bid off by William Austin for $256.25. William Austin, at the time of the purchase, had notice that the consideration for the deed to Youngs was paid by another. William Austin assigned the sheriff’s certificate to his sister, Mary Austin, and on the 25th of Yovember, • 1854, the sheriff executed his deed of the premises to Mary Austin, and the conveyance was recorded on the 8th December, 1854. On the 2d May, 1853, Youngs conveyed the property to the plaintiff, subject to the mortgage, and the conveyance was recorded on the 13th May, 1853. Youngs was never in possession of the premises, except that he collected the first quarter's rent and paid it over to Siemon, the father of the plaintiff, who collected the subsequent rents. On the 30th December, 1854, Mary Austin brought an action of ejectment for these premises against one James Murtagh, (a tenant,) and the plaintiff. In February, 1855, the plaintiff commenced this suit to restrain the action of ejectment, to have the sheriff’s deed cancelled as a cloud upon her title, and to have a resulting trust declared in her favor in the deed to Youngs, alleging that she paid the consideration for the deed to Youngs, and that he. took the deed to himself in fraud of her rights. A preliminary injunction was allowed, restraining further proceedings in the ejectment suit. The action having been referred to a referee, he made a report in favor of the plaintiff, on which judgment was entered, establishing a resulting trust, and cancelling the sheriff’s deed as a cloud upon her title. On appeal to the general term that judgment was affirmed, and from.the judgment of affirmance this appeal was taken.
    
      A. J. Parker, for the appellants.
    I. This action can not be maintained, because Mary Siemon could have had the affirmative relief sought in this action, in the action of ejectment brought by thw defendant, Mary Austin, against Mary Siemon. It is th* policy of the law to avoid a multiplicity of suits, and *, second action can not be capriciously maintained for pur poses attainable in .the first. (Padgett v. Lawrence, 10 Paige, 176; Code, §150; Dobson v. Pearce, 2 Kern. 165, Crary v. Goodman, 2 ib. 266; Reubens v. Joel, 3 ib. 488.) Under the old practice, a second suit could not be maintained where a remedy might have been had by way of defense in the first, nor could relief be given in equity where there was a remedy at law. But, under the code, there is still less excuse for a cross action, because an equitable right establishes not only a defense to a legal claim, but also entitles a defendant to affirmative relief in the same action.
    II. Youngs took the conveyance of the premises to himself at the request of the party paying the consideration. No trust resulted, except in favor of the creditors of the latter. (1 K. S. 728, §§ 51, 52.) Section fifty-one declares 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, subject only to the provisions of the next section. The only exceptions are as to creditors of the person paying the consideration in section fifty-two, when an absolute conveyance is taken without the consent or knowledge of the person paying the consideration, or in violation of some trust as in section fifty-three. (3 R. S. 5 ed. 15; Revisers’ Notes, vol. 3, 2d ed. R. 3, 583, 585; Jencks v. Alexander, 11 Paige, 619; Garfield v. Hatmaker, 15 N. Y. Rep. 475; Davis v. Graves, 29 Barb. 480; Lounsbury v. Purdy, 16 Barb. 376; 11 ib. 490, 18 N. Y. Rep. 515.)
    1. The money in the hands of Mrs. Siemon vested absolutely in the husband by the marriage.
    2. If invested by him in land, in his own name, no trust for her would have resulted.
    3. The one thousand dollars nominally received from her, being her husband’s money, no promise made by him, on receiving it, could be enforced in favor of the wife, or any other person.
    4. A moiety of the consideration indisputably proceeded from Mr. Siemon; and the other moiety proceeded from him, either as being originally his, or upon the principle above stated. No trust resulted, except for creditors.
    • 5., No part of the consideration proceeded from the plaintiff. The money, as such, was never hers; it was never given, or intended to be given, to her as money. Neither, as against her parents or Youngs, could she have recovered it. Nor, if her father had taken the deed in his own name, would a trust have resulted in her favor. Payment by one will not raise an implication of a trust in favor of another. (Padgett v. Lawrence, 10 Paige, 170; Botsford v. Burr, 2 J. Ch. R. 405.)
    6. Even supposing a moiety of the consideration to have proceeded from Mrs. Siemon, the other moiety proceeded from Mr. Siemon. Neither intended a gift of money to their daughter, but both intended and expressly provided for a secret trust, partly in favor of the daughter and partly in favor, of her father. The gift -was intended sub modo, and must be taken subject to the legal conditions which attach to its form and substance. They intended and directed just what was done. They intended and provided that Mary Siemon should take all she took as a resulting trust, and not otherwise. Does the statute permit one thus to create resulting trusts for another, taking, not as contributing consideration, but taking an estate through the resulting trust as a gift?' They could no more create a secret resulting trust'in favor of their daughter by this conveyance to Youngs, than they could create it in then own favor. The statute declares it to 'be,void as to every one, except as to creditors. The person advancing the money, and the person to whom the advance was a gift, have always stood on the same footing. It was, so held before resulting trusts were abolished. (Getman v. Getman, 1 Barb. Ch. R. 499.)
    7. The transaction was intended as a secret trust, for Siemon, in fraud of his creditors, (a.) He was insolvent. (b.) He received all the rents and profits, and has never accounted for them, (c.) He borrowed $1,000 by a-mortgage upon the property, executed three years after the conveyance to Youngs. He has thus hindered and delayed creditors, and consummated the fraud which was the motiva to the trust, (d.) There is no satisfactory evidence that, in point of fact, any part of the consideration money proceeded from Mrs. Siemon. The account Mr. Siemon gives of it is fraught with suspicion, improbable and unworthy of belief, (e.) The pretended interest of the plaintiff in the property was kept a profound secret from her, and all the children understood the property, to belong to the father, until the ejectment suit was brought. The conveyance by Youngs to the ‘ plaintiff was while the property was being proceeded against under the judgment against Youngs, and that, like-all the rest, was concealed from the plaintiff. The inference of fraud, from these facts, is irresistible.
    III. The paroi trust relied upon by the plaintiff is void. The court of appeals has decided that no paroi trust of lands can be allowed without overthrowing the wholesome provisions of the statute of frauds. (Sturtevant v. Sturtevant, 20 N. Y. R. 39.) And there can be no implication of a trust in favor of the plaintiff, for the plaintiff’s money was not paid.
    
      TV. The premises were conveyed by Weiss to Youngs, in March, 1847. As against Youngs, the judgment became a lien on the 6t.h of March, 1849. As against Mr. Siemon, Youngs had a good title to at least an undivided moiety of the property, upon which that lien attached. The mortgage executed to Lamberson, in February, 1850, did not defeat but was subject to that lien. By the sale on Schurck’s execution, his judgment was extinguished; and if the referee was right, Siemon (for whom there was no resulting trust) and the mortgagee who, with notice of the judgment, lent $1,000 for his use, have been let in upon the property, not only to defeat the lien of the judgment, but to the utter extinguishment of the judgment itself. (Russell v. Allen, 10 Paige, 249; Davis v. Graves, 29 Barb. 480.) These consequences,are subversive of the plain letter and policy of the statute against resulting trusts; and the effect of sanctioning them is to encourage and promote the very frauds and mischief the legislature labored to suppress. (Bevisers’ note as to sec. 45; 3 E. S., 2d ed., 579, 583; Lalor on Eeal estate, 119.)
    
      V. The defendants Austins are bona fide purchasers.
    1. The consideration they paid was the Schurck judgment, with the sheriff’s fees and costs of sale. The sale extinguished the judgment. (Wood v. Chapin, 3 Kernan, 509; Bank of St. Albans v. Gilliland, 23 Wend. 311; Bank of Sandusky v. Scoville, 24 Wend. 115; N. Y. 
      
      Marbled Iron Works v. Smith, 4 Duer, 362; Padgett v. Lawrence, 10 Paige, 170, 179, 180.)
    2. They were purchasers without notice under the recording acts. The judgment being a lien, purchasers under it were not bound to take notice of subsequent conveyances. (Norton v. Stone, 8 Paige 222-6.)
    3. The disclosure made by Youngs in the supplementary proceedings on the judgment, only established the lien That Siemon had paid the consideration for. the deed t< Youngs, negatives any rights but those of creditors. (Grosvenor v. Allen, 9 Paige, 77.)
    4. The fact that Youngs executed a nominal conveyance to the plaintiff, even if brought home to Austin, would not have availed her, in connection with the facts that het father paid the consideration; that she had not procured the deed to herself; that she was not in possession or receiving the rents and profits, and that she had not heard of either the deed to her or of her pretended interest in the premises until after the ejectment suit was commenced.
    
      VI. H a resulting trust can be established without repealing the statute, it can be for no more than the $1,001) claimed to have been advanced by the plaintiff’s mother (2 J. Ch. E. 409; 3 Paige, 390, 1 Barb. Ch. 499; 10 Paig*. 170; 15 Wend. 647; 2 Paige, 238, 241; 6 Co wen, 706; 11 Barb. 490.) And the right of the purchaser at the judicial sale cannot be prejudiced by the mortgage subsequently executed. Its assumption by the plaintiff in the conveyance to her, is her own voluntary act. She thereby adopted the original transaction—-an absolute deed to Youngs, a secret trust for her father as well as herself, and the power to borrow money for her father on the property. She must abide by the condition thus adopted.
    
      J. W. Gilbert, for the respondent.
    J. The facts in this case, as they existed prior to the conveyance "by Youngs to the plaintiff, raised an implied trust for her benefit.
    1. The alleged gift of one thousand dollars by her mother was valid, and became effectual as soon as invested in the purchase of the premises in question. (Hill on Trustees, 97, et seq.; Coutant v. Schuyler, 1 Paige, 316; Minchin v. Merrill, 2 Edw. Ch. R. 333; Grangiac v. Arden, 10 J. R. 293; Meth. Church v. Jaques, 1 J. C. R. 450; Reed v. Marble, 10 Paige, 409.)
    2. Implied or resulting trusts are not affected by the Eeviséd Statutes, except that the trust which formerly resulted from the mere payment of the purchase money by one, and the taking of the conveyance in the name of another, with the consent of the party who paid the money, is abolished, except as to creditors. (1 R. S. 728, §§ 50, 51; Garfield v. Hatmaker, 15 N. Y. R. 476; 4 Kent’s Com. 312, n. 1.)
    3. This trust was not within the fifty-first section of the Eevised Statutes, above referred to, as qualified by the fifty-third section, for the reason that the plaintiff, who set up the trust, and for whose benefit the purchase was made, did not pay the purchase money, and the conveyance was taken as an absolute one, in Youngs’ own name, without her knowledge or consent, (a.) The revisers, in their note on this subject, state the object of the change which they proposed in the law to be to prevenía “secret resulting trust from being created by the act of the party claiming its benefit” (3 E. S. 2d ed. 583); and again they ask: “ Why should a man, purchasing lands for his own benefit, take the conveyance in the name of another?” (Id. 585.) And they avow their intention to preserve the old doctrine of implied trusts in other cases, because it is necessary to prevent fraud. (Id. 583.) (b.) Whatever agency Mr. Siemon, the father, exercised in this case, was in behalf of the plaintiff’s mother, to secure and make effectual her gift to the plaintiff, and cannot operate to charge the plaintiff with any knowledge of, or consent to, the mode in which the business was done. Hor was Mrs. Siemon privy to the taking, of the conveyance to Youngs absolutely. (See Hosford v. Merwin, 5 Barb. 57; Botsford v. Burr, 2 J. C. R. 405; Bodine v. Edwards, 10 Paige, 504; Lounsbury v. Purdy, 18 N. Y. 515; Tiff. & Bull. on Trustees, 480 to 489, and cases cited; Story Eq. Jur. § 1201; Day v. Both, 18 N. Y. R. 448.) (c.) And, in any view of the case, it would have been a clear violation of duty on the part of Youngs, if he had used the $1,000 placed in his hands by the plaintiff’s mother, to pay the debts of her father; and yet, to bring the case within the fifty-first section, would enable Youngs to 'effect the same result, (d.) But if the case be within the fifty-first section, then the trust resulted to the creditors of Siemon, and Austin got nothing by his purchase. (15 N. Y. R. Sup.)
    4. Implied trusts are not' affected by the statute of frauds; and our statute expressly exempts them from,its operation. (2 R. S. 134-5, §§ 6, 7; Astor v. L’Amoreux, 4 Sand. S. C. R. 529.)
    II. Being a “trust arising or resulting by implication of law,” and expressly preserved by the Revised Statutes (1 R. S. 728, § 50), the court, on a refusal by Youngs to convey to the plaintiff, would have decreed him to be a trustee ex maleficio, upon the principle that if one takes a conveyance in his own name of an estate which he undertakes to obtain for another, he will in equity be considered as holding in trust for his principal. (Tiff. & Bull, on Trustees, 32, el seq.; Sweet v. Jacocks, 6 Paige, 355.) His conveyance, therefore, was a proper and valid admission and execution of the trust. (Tiff. & Bull, on Trustees, 189, 480, and cases cited; see, also, Wright v. Douglass, 3 Seld. 564.)
    IH. But whether Youngs, under the circumstances, could have been compelled to convey or not, or whether the case is within the fifty-first section of the Revised Statutes, so as to vest an. interest in the creditors of the plaintiff’s parents, or of either of them, it is very clear that his actual conveyance is well supported by the moral obligation resting upon him .to make it, and ought to be upheld as against him, or any one claiming under him, with notice of the plaintiff’s equities.
    Í. It was his duty to take a conveyance in trust for the plaintiff. This, by the forty-seventh section of the statute relative to uses and trusts, would have vested the legal estate in the plaintiff. z
    2. Having omitted to do this, through ignorance or inadvertence, it became his duty, voluntarily or upon request, to manifest or declare the trust, or else to execute it. Such, upon the facts found in this case, is the only effect of his conveyance.
    3. There are no creditors of the Siemons, father or mother. But if there were, they are not parties to this suit, and their rights can receive no prejudice from any determination here.
    IY. William Austin, the purchaser at the sheriff’s sale, acquired only such right and title as Youngs had in the land. The title thus acquired did not relate back to the date of the judgment, but was affected by the notice of the plaintiff’s equities which Austin had when he purchased, (Evertson v. Sawyer, 2 Wend. 507; Jackson v. Post, 15 Wend. 588-596; Hooker v. Pierce, 2 Hill, 650.) And the purchase from the sheriff having been made after Youngs had conveyed to the plaintiff, who was in equity the owner, and in execution of the trust which he assumed on taking: the legal estate, Austin, the purchaser, got no title. (Averill v. Loucks, 6 Barb. 19; cases infra.)
    
    Y. The equities of the plaintiff are paramount and superior to the lien of the judgment, and the latter will be controlled so as to protect the former. (Hill on Trustees, 269, and cases in n. C; Story Eq. Jur. 1503-b; Whitworth v. Guaguain, 3 Hare, 406; Arnold v. Patrick, 6 Paige, 310; White v. Carpenter, 2 Paige, 217; in re Howe, 1 Paige, 125; Buchan v. Sumner, 2 Barbour’s Chancery Reports, 207.)
    VI. This is not an attempt to establish an implied trust, to defeat or prejudice the title of a purchaser, for a valuable consideration, and without notice of the trust. (1 R. S. 728, § 54.) For both the Austins had constructive notice of the trust.
    1. By the possession of the premises. (Grimstone v. Carter, 3 Paige, 421.)
    2. By the record of Youngs’ deed to the plaintiff. (1 R. S. 756, § 1; id. 739, § 144; 2 Hill; supra; Tuttle v. Jackson, 6 Wend. 213.)
    3. By the examination of Youngs, under proceedings supplementary to execution.
    This notice is found as a fact by the referee, and by the court at general term. See Williamson v. Brown (15 N. Y. R. 354), where the rule as to notice is clearly stated by Selden, J. And William Austin had actual notice that' Youngs had no interest in the land. Moreover, neither were purchasers for value.' (Wood v. Robinson, 22 New York Reports, 564; Dickerson v. Tillinghast, 4 Paige, 215.)
    VII. The trust which we allege affected the whole estate, for the advance of Mr. Siemon was not made for a joint purchase, but as a temporary loan, and the agreement of Youngs was to hold the whole estate as trustee for the plaintiff, subject to the right of Mr. Siemon, to be reimbursed the sum advanced by him.
    VIH. The action was well brought, for the reasons assigned by the court below.
   Hogeboom, J.

The object of this action was to obtain an injunction restraining the further prosecution of an ejectment suit, instituted by the defendant Mary Austin, against the plaintiff and her tenant, to recover certain premises in Brooklyn; and to cause to be delivered up to the plaintiff a certain sheriff’s deed of said premises given upon the sale of the premises to the defendant Mary Austin, who had an assignment of the sheriff ’s certificate of sale from the defendant William Austin, who was the original purchaser at such sheriff’s sale, under a judgment obtained by the defendant Morris Schurck against one George Youngs. The plaintiff claims the equitable title to said premises, as being held by said Youngs as her trustee or for her benefit, under a deed to him prior to the lien of the judgment in question. And'the questions are, whether there is in fact such equitable title in the plaintiff, capable of being enforced in a court of justice; and whether it is superior to the apparent legal title conferred by the deed to Youngs. The deed to Youngs is absolute upon its face, and the grantors therein- were confessedly the ■ true owners of the premises at the time of making the conveyance. So that Youngs had in 1847 the apparently perfect legal title; and if such were the case, the judgment of the defendant Schurck would become a perfect and valid lien on it at the time it was obtained, in 1849.

The first question, therefox’e to determine is, what was the actual title of Youngs? The consideration of the deed to Youngs was two thousand dollars. He paid no part of lt; he never claimed to do so. The conveyance was intended for the benefit of the plaintiff, who -was then a minor of the age of about fifteen years. The plaintiff did not in fact advance the money, nor was it paid out of the property. One-half of it was advanced by her mother, the residue by her father—the latter being subsequently repaid to him out of the proceeds of a mortgage upon the premises executed by Youngs and confirmed by the plaintiff. Youngs never had possession of the px’emises, and only once collected the rent of it from the tenant, for the benefit of the plaintiff. The rents and profits of the premises wei’e always received by the plaintiff, or by her father for her benefit. The purchase was in fact made for the benefit of •(¡he plaintiff, and was intended as a gift or advancement to her on the part of her parents. No question arises in the case between- her and her parents.. Her mother is dead, and her father desires to give effect to the deed to Youngs for her benefit. No question arises between her father, George H. Siemon, and his creditors. Their claims, if any they have, are not involved in this controversy; nor are they parties thereto. No question arises between Youngs and the plaintiff. He admits that he took the title for her benefit; that he so intended at the outset; that he did not advance the consideration; that she always had the equitable title; and he in fact vested, or attempted to vest the legal title in her by a conveyance of the premises to her, in May, 1853, after the sheriff’s sale but before the sheriff’s deed. The difficulty in the plaintiff’s title, if any there be, arises under those sections of the revised statutes which declare that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another—except in cases where the title is thus taken without the knowledge óf the person paying the consideration, or where the alienee purchases the land with money belonging to another in violation of some trust—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, subject, however, to a.resulting trust in favor of the creditors of the person paying the consideration, to the extent of their just demands. (1 E. S. 728, §§ 51, 52, 53.) By these sections, it is claimed on the part of the appellants, a complete legal title was vested; by the transaction in question, in Youngs. It is fairly inferrible from the phraseology of these sections, and is obvious from the notes of the revisers, that the principal if not the only mischief intended to be remedied and uprooted by these sections was a secret trust for the benefit of the p.erson paying the consideration. It was not deemed consistent with fair dealing and just policy, that a person for whose use such a conveyance was made, and who was designed to reap all the benefits thereof, should thus conceal a real ownership under an assumed name; and the statute, therefore, virtually imposed upon him the penalty of the forfeiture of his estate.. No such argument—at least not in all its force—applies to the case of a gift or advancement made by a parent to a child, where the latter was intended to be vested with the beneficial ownership and the complete equitable title. It may be difficult to give a satisfactory reason why the title should not have been conveyed directly to the child for whose benefit the conveyance was intended; but whether the real motive was to conceal the character of the transaction from other children or equally deserving claimants upon the bounty of the parent, or from a supposed inconvenience or embarrassment in making the conveyance to a minor, or from ignorance or injudicious advice, or any other cause, we are able to see that the mischiefs of such a transaction are by no means as great as those arising from a secret trust in favor of the person paying the consideration himself. And we are to give a construction to this statute in accordance with the legislative intent, gathered primarily from the terms of the statute itselfj and such other sources of information, as the notes of cotemporaneous commentators, as are within our reach. Looking again .at the statute, the language is, no use or trust shall result in favor of the person by whom such payment shall be, made; which is not necessarily prohibitory of a resulting trust for- the benefit of a third person, in whose favor, for family or other lawful and sufficient reasons, it was deemed proper to make some provision. It is true, the section just quoted immediately afterwards contains the further words: “but the title shall vest in the person named as the alienee in such conveyance.” But these words must, I think, be read in connection with the preceding clause, and as if these words had been subjoined to the words last quoted, “ as between such alienee, or parties deriving title through hint, and the person paying such consideration.” (See also Hosford v. Merwin, 5 Barbour, 51.)

Another exception has been engrafted or limitation made upon the apparently sweeping and comprehensive terms of this section, to wit: that if it does not appear that the absolute character of the deed, upon its face, was known to or designed by the person paying the consideration, it will be presumed that it was so written by fraud or mistake, and without any intent to violate the statute. This is clearly the effect of the cases of Day v. Roth (18 N. Y. 448), and Lounsbury v. Purdy (18 N. Y. 515.)

The principle of. those decisions applies with full force to .the present case. The deed was taken absolutely to Youngs, without the knowledge or consent of the plaintiff. And, although it appears that both Siemon, the father, and Mrs. Siemon, the mother, and Youngs, the grantee, designed that the deed should be taken' in the name of the latter for the benefit of-the plaintiff, it does not appear from their testimony, nor otherwise from the case, nor from the statement of facts found by the court, that they designed that the deed should be absolute on its face without any declaration of the trust or equitable ownership in favor of the daughter.

We may, therefore, without doing violence to the language of the statute, except this case from its operation in accordance with the manifest equity of the transaction; foi there is nothing to indicate in the slightest degree but everything on the contrary, to repel the presumption that Youngs obtained any credit with the plaintiff in the judgment growing out of his supposed ownership of the property in question.

When, therefore, Youngs conveyed this property to the plaintiff, he did no more than discharge an equitable and conscientious obligation, and carry into effect the agreement under which the property was conveyed to him. Resting under this obligation, equity would have compelled him to fulfil it, and although he had the legal title, it was a mere naked title, without interest, and one upon, which the judgment could not fasten as an effeótive lien, The defendants cannot then be protected, unless they can show some right under their purchase independent of and superior to that which Youngs himself possessed.

Section fifty-four of the statute already quoted (1E. S. 728, § 54), declares that no implied or resulting trust shall be alleged or established to defeat or prejudice the title of a purchaser for a valuable consideration, and without notice of the trust. The defendants- are not .within this category, for the following reasons: 1. The plaintiff’s deed was on- record before the purchase at the sheriff’s sale. 2. The possession of the premises, and the receipt of the rents and profits, were never in Youngs, but always in the plaintiff, or in her father for her. 3,. William Austin and Schurclc had actual knowledge before the sheriff’s sale that Youngs did not hold the deed for his own benefit. 4. Mary Austin was not a purchaser for" a valuable consideration from her brother. 5. Neither William Austin nor Mary Austin, if notified before the purchase by them of facts affecting Youngs’ title, can be protected upon the ground that they had no such knowledge at the time of the judgment. In this particular their purchase takes effect from the time of the actual sale, and does not reach back by relation to the date of the judgment. (Jackson v. Post, 15 Wendell, 588, 596; White v. Carpenter, 2 Paige, 217; In re Howe, 1 Paige, 125; Buchan v. Sumner, 2 Barb. Ch. Reports, 207; Wilkes v. Harper, ibid. 350; Arnold v. Patrick, 6 Paige, 316.)

This disposes of the case upon the merits. It only remains to consider the formal question whether the plaintiff is barred from equitable relief in this action because she might, have interposed it as a defence in the ejectment suit. 1. It is sufficiently plain, perhaps, that the plaintiff in tMs suit might have successfully defended the ejectment suit under the equitable title she now claims. 2. But she desired and obtained more comprehensive relief than she could obtain in the ejectment suit. This was: 1st. To set aside the sheriff’s deed to Mary Austin as a cloud upon the title. 2d. To compel a conveyance or release from Mary Austin and William Austin of their interest in the premises. 3d. To declare the judgment of Schurck to be no lien upon the premises, and perpetually enjoin its enforcement against them. To accomplish this, Schurck, not a party to the ejectment" suit, was a' necessary party to this suit.

For some of these purposes, I think-she was entitled to institute this action. The z-esult is that the judgment of the coúrt below should be affirmed with costs.

Davies, J.

The reasons given by Judge Emott (38 Barb. 9) for the judgment appealed from, are to my mind satisfactory and conclusive. It may, I think, be added thaS the provisions of the revised statutes relied upon have no application to this case. At common law, if a conveyance is made to one pei’son, and the consideration is paid by another, a trust in equity results in favor'of him who paid the money. If. this rule has not been modified or abrogated by the revised statutes, it will be conceded that od the payment of the money for'the purchase by Youngs, ¡8 trust resulted in favor of this plaintiff. It was paid fc s her and for her. benefit, and the same results follow as i t she had paid it herself. But it is contended that this rul > of the common law has been changed, as it undoubtedly has, by the provisions of section fifty-one of the revised statutes, relating to uses and trusts (3 B. S. 5th ed, p. 15), which declares that when a grant for a valuable consideration is made to one person, and the consideration is paid by another, no use or trust shall result in favor of the person by whom the payment is made, but the title shall vest in the person named as alienee, subject only to the provisions of the next section. But the fifty-third section declares that the provisions of the fifty-first section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the consent or knowledge of the person paying the consideration. Now it is found as a fact in this case that this plaintiff, who in substance .paid the consideration for this conveyance, had no knowledge of, and did not consent to, Youngs’ taking the conveyance absolutely and in his own name. It follows, therefore, that the provisions of the fifty-first section are inapplicable, and that the rule of the common law is revived, and by it the rights of the parties are tó be settled. '

We would also be justified in assuming, to maintain this judgment, if it were necessary, that neither Mr. or Mrs. Siemon gave any consent or had any knowledge that Youngs took the conveyance as an absolute one, in his own name. It is not found that they, or either of them, had such knowledge or gave such consent, and we therefore assume they had not, and never gave it. (Grant v. Morse, 22 N. Y. 323.) Neither of the Austins were bona fide purchasers, and can claim nothing as such. (Wood v. Robinson, 22 N. Y. 564.)

The judgment should be affirmed, with costs.

All the other judges concurring, judgment affirmed.  