
    Aaron P. Bates, App’lt, The Lidgerwood Manufacturing Company, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 1, 1891.)
    
    1. Ejectment—Evidence.
    In an action of ejectment brought to recover certain lands in the county of Kings, state of New York, plaintiff alleged that the F. D. Co., a New Jersey corporation, was in possession of the premises in 1867, when one A. caused them to be sold under an execution against said F. D. Co. and plaintiff purchased at sheriff’s sale. Plaintiff proved entry of A.’s judgment in supreme court, Kings county, issuance of execution to the sheriff, who sold the premises and made certificate to one Armstrong, who-assigned it to plaintiff, and that the sheriff made a deed to him. Held, 
      that the evidence introduced by plaintiff failed to establish any cause of action against defendant.
    2. Same.
    The exclusion of evidence which tended to prove no legal title in the F. D. Company, but at most only an equitable interest or estate derived from arrangement made by it with one Russel, one of the defendants in the New Jersey action, subsequent to his purchase on the execution, was not erroneous, as there was no evidence that the premises were in the possession of the company prior to the sale on the execution.
    Appeal from judgment entered on decision of the general term of the supreme court, in the second judicial department, affirming judgment of dismissal of the complaint
    This action of ejectment was brought to recover the possession ■of certain lands situate in the county of Kings. And the plaintiff alleged that the Fibre Disintegrating Company, a New Jersey corporation, was seized in fee and in possession of the premises on March 13, 1867, when one John Anson recovered against the company a judgment, upon which was issued execution, by virtue of which the premises were sold and a sheriff’s deed after-wards made to the plaintiff pursuant to the sale; that he had since then been seized in fee of such lands; and that the defendant unlawfully entered into and withheld the possession of the premises.
    The defendant, by its answer, put in issue the material allegations of the complaint
    The plaintiff proved judgment of Anson against the F. D. Co., recovered March 13, 1867, in supreme court for $48422, and docketed same day in Kings county, executions issued March 16, 1867, and August 2, 1872, to the sheriff, who sold the premises on last execution and made certificate of sale to one Armstrong, who assigned it to the plaintiff, and in January, 1874, the sheriff made deed to him. Some further evidence was offered by the plaintiff and excluded. Thereupon the complaint was dismissed.
    
      A. P. Bates, for app’lt; James D. Fessenden, for resp’t.
    
      
       Affirming 22 St. Rep., 395.
    
   Bradley, J.

The evidence introduced by the plaintiff failed to establish any cause of action against the defendant. • The main questions arise upon the exceptions to exclusion of evidence, which, it is claimed on the part of the plaintiff, would have tended to prove that the Fibre Disintegrating Company had title to the premises in question at the time of the recovery by Anson against it in March, 1867, and upon which the judgment became a lien and that by the sheriff’s deed to the plaintiff the latter took such title. The question, therefore, arises whether the excluded evidence was sufficient to prove that the F. D. Co. had a title or interest in the premises salable by execution issued upon the judgment through the sale on which the plaintiff bases his claim to right of action. His offer was to introduce in evidence a record of the court of chancery of the state of New Jersey consisting of a bill, answer and decree, in which one Ogilby was complainant and the F. D. Co. and Bobert W. Bussell were defendants, by which decree one Morris was appointed receiver of the estate, right, title and interest of that company in the premises in question; also a conveyance in compliance with the decree by the company of all its title and interest in such lands to the receiver; and a conveyance by Morris as such receiver and Bussell to the American Fibre Company, a corporation of the state of Mew York. This conveyance was made by the receiver pursuant to the power given him by the decree, and by Bussell to comply in that manner with the direction in it for conveyance to him by the receiver.

The complainant was creditor of the F. D. Co. and the bill was filed in January, 1867, for the appropriation of the estate of that company in the lands to the payment of his claims, and amongst other matters he alleged that on or about the 1st of February, 1864, Bussell purchased the premises, took conveyances, and after having paid a portion of it gave his bonds secured by his mortgages upon the lands for the balance ($30,000) of the purchase money; that Bussell having offered to transfer the benefit of his purchases to the F. D. Co. made an arrangement with it by which the company assumed the purchases and became entitled to the benefit of them as appeared by certain resolutions of the executive committee of the board of directors of the company adopted in March and May, 1864; that thereupon the company advanced the amounts of the purchase money paid at the time of the conveyances to Bussell, and thereafter under such arrangement occupied, used and enjoyed the premises and had up to 1866 paid interest on such bonds and mortgages and taxes. The allegations in the bill were admitted by the answers of the defendants, and decree was entered for the relief prayed for by the complainant.

The deeds before mentioned referred to the bill and decree and recited the adjudicating provisions of the latter. They were dated in March and April, 1867. The deed to the American Fibre Company recited the adjudication that the F. D. Co., having become entitled to the benefit of the Bussell purchases, owned the premises, having the equitable title thereto subject to such mortgages thereon.

It is urged that the bill, answers, decree and the deeds furnished evidence that the F. D. Co. was seized in fee and in possession of the premises subject to the lien of the judgment upon which the execution sale was founded and through which the plaintiff derived his alleged title. The legal title represented by the deeds was in Bussell until the conveyance to the American Fibre Company; and the arrangement alleged in the complaint in the chancery suit between him and the F. D. Co., pursuant to which that company went into possession, gave to the latter the equitable title subject to the mortgages. The judgment was not a lien upon such equitable estate, nor was it salable upon execution issued upon such judgment. 1 R. S., 744, § 4; Sage v. Cartwright, 9 N. Y., 49; Grosvenor v. Allen, 9 Paige, 74.

So far as appears by the statement in the deed to the American Fibre Company, executed by Russell, the F. D. Co. took its interest in the premises and possession by the arrangement between them made subsequent to the conveyance to Russell, and in assuming the purchases made by him it also assumed the payment of the purchase money secured by his bonds and mortgages, which he remained liable to pay to his obligees. And nothing appears to show that the company was entitled to take or perfect legal title to the premises until he was relieved from such obligations. A different question would have been presented’ if it had appeared, in the manner required by statute, that Russell had taken the conveyance in trust for the company. In that case the legal title would have vested in the company. 1 R. S., 728, 729, §§ 49, 58. But to accomplish this it was essential that the trust be declared by deed or conveyance in writing, etc. 2 R. S., 184, § 6. And the trust must have existed at the time of the grant to the trustee, although it may have been effectually declared afterwards. Wright v. Douglass, 7 N. Y., 564. This the deed executed by Russell to the American Fibre Company failed to do. And although the F. D. Co. advanced the money for the payments that were made upon the purchases, it cannot, in view ■of the statute, be held that the company took the legal estate by virtue of any trust resulting to it. 1 R. S., 728, § 51; Garfield v. Hatmaker, 15 N. Y., 475.

The evidence offered would have tended to prove no legal title' in the F. D. Co., but at most only an equitable interest or estate derived from arrangement made with Russell subsequent to his purchase and not subject to lien of the judgment; and as it could not be assumed if the evidence had been introduced that its possession was other than under such arrangement, the plaintiff was not prejudiced by its exclusion. The execution sale under which the plaintiff claimed was ineffectual to vest any estate in the sheriff ’s grantee. No evidence that the premises were in the possession of the F. D. Co. prior to the sale on the execution was introduced; ;and in view of the issue made by the answer it contained no admission to aid, without further evidence, the claim of the plaintiff.

It follows that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  