
    Edward J. Curtin, App’lt, v. William H. Curtin et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Trusts—Specific performance.
    In order to save the life estate of their mother on a foreclosure it was agreed that plaintiff should pay the amount required by the terms of the sale, and the balance raised by mortgage on that and other land of plaintiff which had been deeded to defendant, and defendants agreed to convey to plaintiff on request. The referee’s deed was made to defendant’s wife without her knowledge, and she afterwards deeded to her husband, and the mortgage was given, which was afterwards paid by plaintiff, who remained in possession. In an action to compel a" conveyance, Held, that the case was not within the statute forbidding resulting trusts, and that specific performance of the agreement to convey should be decreed
    (Pratt, J., dissents.)
    Appeal from judgment of special term dismissing complaint.
    Action to have a deed of lands to defendants declared to be held in trust for plaintiff, and to compel a conveyance of said lands to him.
    
      A. J. Spencer, for app’lt; Horace Graves, for resp’ts.
   Barnard, P. J.

Margaret Curtin held a life estate in a piece of real property in Brooklyn, under the will of her husband. There was a mortgage upon it, which,was foreclosed, and a sale-made under the decree. At the sale the plaintiff procured the title to be taken from the referee to Carrie F. Curtin, defendant’s wife, and the plaintiff paid the consideration. Came F. Curtin was not present at the sale, and had no knowledge that the title was taken in her name. She subsequently discovered this fact, and conveyed the property to her husband, William H. Curtin, who had knowledge of all the facts. The question is whether the plaintiff can get the land. The plaintiff and the defendant Wm. H. Curtin are brothers, sons of Margaret Curtin and of her deceased husband, under whose will the life estate was devised to her. They are also both executors of, his will. The statute under which the defendant claims to hold the property is as follows:

“ 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 m the person named as the alienee in such conveyance, subject only to the provisions of the next section.” 1 R. S., 728, § 51.

That section saves the rights of creditors only; but in this case the interests of the creditors of plaintiff were not affected. The object of the transaction seems to have been to save the property for the mother, and the agreement was that the plaintiff should pay the money needed to meet the terms of sale and the balance was to be secured by mortgage upon the same and other property. This other property had been deeded by the plaintiff to his brother, the defendant, and had been re-deeded to plaintiff. To enable the defendants to execute a mortgage on this, this deed back to plaintiff, which was not recorded, was mutilated by cutting out the name of the plaintiff as grantee, and thus putting the title back again. The defendants acted under this view of the law of the transaction, gave a new mortgage and this mortgage the plaintiff subsequently paid in full. The plaintiff went into possession of the premises and continued there since. I do not think the case one which is covered by the statute. Assuming that the defendant Carrie F. Curtin could keep the title if the plaintiff had paid the whole purchase money, he did not pay but a small per cent in money and the agreement then comes in between the wife and the two brothers that the plaintiff’s property should be mortgaged by them because they appeared to have the record rights to do so, and that they would convey the property got at the foreclosure sale to the plaintiff on request. The case is one for a specific performance of a contract in equity.

Especially is this so where it was part of the agreement that the mother was to have a life estate in the property after the purchase at the foreclosure sale. It would work a fraud if the contract was not executed as the parties made it, even though it was not in writing.

The judgment should be reversed and a new trial granted, with costs to abide event.

Dykman, J.', concurs.

Pratt, J.,

(dissenting.)—This case comes squarely under the statute forbidding resulting trusts. 1 Rev. Stat, 728, § 51. The plaintiff paid for the land and directed it to be struck off and that a deed be delivered to Mrs. Curtin. Such deed was delivered to and accepted by her and she afterwards deeded the property to the defendant W. H. Curtin; the latter therefore became and is now the absolute owner of the premises. So far as appeared the plaintiff had no interest in the property at the time of the purchase and sale and Mrs. Curtin had never assumed to bid at the sale or to take title as against the 'plaintiff.

Whatever may be said of the morality of this transaction' it is clear in law that this action cannot be maintained.

Neither of the defendants were guilty of any fraud in pro■curing the "deed from the referee nor does it appear that any •agreement ever was made for a reconveyance to the plaintiff.'

Judgment, affirmed, but without costs.

Judgment reversed, and a new trial granted, with costs to •abide event  