
    Emeline Lee, Appellant, v. Mary A. Timken, Respondent.
    
      A wife, joining with her husband in making a deed—she cannot retract and seek to hare her dower admeasured—a party paying the consideration for property, of which another takes the deed—no resulting trust.
    
    A wife joined with her liushand in deeding property to his daughter, and the husband at the same time deeded property to the wife, both deeds to be held by a third party until the death of the husband, and to be then delivered, and the daughter, as a consideration for the wife’s joining in the deed to her, promised the wife that she would, when she came into possession of the property deeded to her, pay off a mortgage which existed upon the premises conveyed to the wife. After the death of the husband, the wife went into possession of the property conveyed to her and accepted part payment of the mortgage from the daughter.
    
      Held, that it was too late for the wife to disaffirm her action in electing to take the deed of the premises conveyed to her by her husband in lieu of dower, and to attempt to have dower admeasured to her in the property which she and her husband had conveyed to the daughter.
    Where a father pays the consideration for a house and lot, the deed of which is taken in the name of his daughter, no trust results in favor of the father or of his estate after his death.
    Appeal by the plaintiff, Emeline Lee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of May, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint.
    
      
      V. Wright Kingsley, for the appellant.
    
      George E. Mott, for the respondent.
   O’Brien, J.:

There are two causes of action set forth in the complaint, both on the equity side of the court. For a first cause of action, the plaintiff, who is the widow of James Lee, alleged that he in his lifetime was the "owner of certain real estate in the city of New York ; that in July, 1891, he made a deed of a piece of real estate in Fifty- . second street to the plaintiff, and that at the same time he and the plaintiff made a deed of a piece of real estate in Fifty-first street to the defendant, and that he delivered both deeds to an attorney with instructions to hold them until his death and then to turn them over to the respective grantees; that at the time of the making of the deeds and prior thereto, it was verbally agreed between the plaintiff and defendant, as a condition of the plaintiff joining with James Lee in the deed to the defendant, that the latter, upon coming into possession of the property conveyed to her, would pay off and discharge a mortgage of $10,000 on the premises deeded to plaintiff ; that thereafter, James Lee having died, and each of the parties having received and accepted their respective deeds, the defendant paid to the plaintiff $4,000, to be applied upon the said $10,000 mortgage, but has failed to pay the balance. The plaintiff asks to have the deed made by her and her husband to the defendant set aside on the ground that it was not delivered until after the death of James Lee, and that it was obtained without the payment of the purchase money, and was null and void as a gift for failure to deliver it during the life of James Lee.

For a second cause of action the plaintiff alleges that certain premises in Fifty-second street were deeded to defendant; that the consideration for the purchase was paid by James Lee, who was the father of defendant; that a flat house subsequently erected upon the lot thus purchased was paid for by the father. And the plaintiff asks that it be adjudged that said deed is now held by the defendant as trustee for the estate of James Lee, and that it be held as void as to the defendant.

It is unnecessary to refer to the numerous defenses interposed, because the questions presented for review upon the exceptions may be disposed of by a consideration of the evidence offered" by the plaintiff upon the trial. As to the first cause of action, it was shown that the plaintiff had accepted her deed, had received the $4,000 from the defendant, and her claim for equitable relief is based substantially upon the ground that she should receive the balancé of $6,000, and that by reason of the failure of the defendant to pay it, she can disaffirm her action in electing to take her deed in lieu of dower and now have the same admeasured to her in the property which was conveyed to the defendant. When it is recalled that the plaintiff has had possession of the property since September, 1891, and has collected the rents thereof, and has accepted the sum of $4,000 in cash from the defendant, thereby ratifying and confirming the execution and delivery of the deeds sought to be set aside, it is apparent that she is not now in a position to disaffirm the election which she made in receiving her deed in lieu of dower. As to the $6,000 remaining, that is a claim which she can enforce in an action at law, and it cannot be made the basis for equitable relief.

As to the second cause of action, it appears that the property was paid for by the father of defendant, as was the house erected bn the premises, and that the deed was taken in the name of the daughter. But it appears that it was recorded the day after it was made and so remained of record until after the death of the father. The claim made by the appellant is that in some way there was a resultant trust in favor of the estate of James Lee, but the statute effectually disposes of this by declaring that property bought or money paid under these circumstances will only establish a resultant trust in favor of creditors, and the cases construing this statute as to resultant trusts are uniform in upholding the rule that no trust results in favor of a party paying the consideration for a conveyance.

We have thus given the most favorable view to the testimony in support of the two causes of action set forth in the complaint, on the assumption that they could have been established. But if we reach the conclusion that, as so established, the plaintiff would not he entitled to the relief which she asks, it effectually disposes of the numerous exceptions taken to rulings excluding evidence, intended to support the two views presented by the complaint which we have considered. We think, as did the learned trial judge — there being no allegation nor proof of fraud, or of undue influence or overreaching in the transaction — that the plaintiff having entered into an agreement which she at the time thought was reasonable and fair, it is too late for her to disaffirm her action with respect to the conveyances made as set forth in her first cause of action. And as to her second cause of action, she is not in a position to invalidate the deed which was made to the defendant, though the consideration therefor was paid by James Lee.

We think, therefore, that the case was correctly disposed of by the learned trial judge, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  