
    Rose M. Leary, Appellant, v. Lizzie J. Corvin and The Church of St. Mary in the City of New York, Respondents.
    
      Action to impress a trust upon real property—conversation with a decedent heard and testified to by a party in interest— declarations by one while in possession of the land—his declarations while he is not in possession.
    
    Where, in an action brought to have a deed executed by the plaintiff’s father and mother, who were both dead, to the defendant, the Church of St. Mary in the city of New York, declared a deed of trust for the benefit of the plaintiff and to set aside a deed from the church corporation to the defendant Oorvin, the plaintiff contends that she furnished a portion of the money with which her father purchased the property, under an agreement that after the death of her father and mother the property should be given to the plaintiff, and that the deed from her father and her mother to the church was intended to be in trust for her, testimony given by the plaintiff to the effect that just before such deed was executed, she was called into a room in which were her mother and the pastor of the church who was also the treasurer and one of the trustees of the church corporation and that her mother then said to the pastor, “This is my only child; this is the one that Í want the property held in trust for by the church,” is inadmissible under section 829 of the Code of Civil Procedure.
    Declarations made by the plaintiff’s father, while he was in possession of the property and before he had made the conveyance to the church, in which he admitted using the plaintiff’s money in the purchase of the property and stated that it would pass to her at the death of himself and his wife, are admissible as against both the defendants, It is otherwise as to similar declarations made by him, after he had conveyed the premises to the church.
    
      Semble, that if the plaintiffs allegations were true, she had, as against all except ■ bona fide purchasers for value without notice, rights in the property which a court of equity would recognize and enforce — certainly to the extent of the money advanced by her together with.interest thereon.
    O’Brien, J., dissented. ■
    Appeal by the plaintiff, Rose M. Leary, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 6th day of November, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      J. Aspinwdll Hodge, Jr., for the appellant.
    
      David McOlwre, for the respondent'Corvin.
    
      Michael J. Scanlon, for the respondent Church of St. Mary.
   McLaughlin, J.:

This action was brought to have a deed of certain real estate in the city ..of New York, executed by the father and mother of the plaintiff to the defendant, the Church of St. Mary, declared a deed of trust for the plaintiff and to set aside a deed from the church to the defendant Corvin, and to compel her and the church to account for the proceeds of a certain mortgage; also, for certain rents, issues and profits. The defendants had a judgment dismissing the complaint, from which the plaintiff has appealed.

There is little dispute as to the facts. The judgment is attacked mainly upon the ground of errors alleged to have been committed by the trial court in excluding certain testimony. The conceded facts are fully set forth in the opinion delivered by the learned justice sitting at Special Term, from which and the evidence in the case it appears that in March, 1874, the plaintiff — an only child — and then over twenty three years of age, deposited to her credit in two savings banks in the city of New York the sum of $1,385 ; that in 1875 she drew this money from the banks and gave it to her father, Patrick J. Corvin, in pursuance of an understanding that he and her mother, Mary Corvin, would purchase a house for a home where they would all live until the death of her parents, and at their death the plaintiff should have the house for her own. At that time it was - contemplated that a house located on Broome street in the city of Mew York would be purchased, but owing to some difficulty with reference to the title, the purchase was not made, and no place, in fact, was purchased until 1880, although between 1875 and that time the father was on the lookout for a suitable place. In 1880 the father purchased the premises described in the complaint, paying therefor $6,500, subject to two mortgages, one for $1,500 and one for $1,000, and in making the purchase he used the money previously given to him by his daughter (he having continued to hold it in the meantime) and other money given to him by his wife. Immediately following the purchase the father and mother went into and continued in possession until their deaths, the latter dying in 1892 and the former in 1898.

It also appeared that the plaintiff was married to Martin J. Leary in 1874, and soon after the purchase of the premises they commenced to and -at different intervals between that time and 1890 did occupy a portion of the house for which rent was paid; that there were misunderstandings between the plaintiff’s husband and her mother; that during this time the plaintiff used intoxicating liquors to such an extent that she spent much time in a sanitarium for the purpose of having such habit cured or corrected.

In 1890 the father and mother of the plaintiff conveyed the premises to the defendant, the Church of St. Mary, for a nominal consideration, the church, for a like consideration, reconveying to them and each of them an estate for life. On the 20th of December, 1892, the church, pursuant to a resolution of its board of trustees, applied to the Supreme Court for leave to sell the premises to the defendant' Lizzie J. Corvin, then Lizzie J. Hearly, for the expressed consideration of $14,500. The application was granted, and an order made permitting the sale to be made, and the church on the twenty-second of December executed a deed of conveyance to her of the premises in question. On the same day that this deed was executed Patrick J. Corvin released, for a nominal consideration, to Lizzie J. Hearly his interest in the premises, and she thereupon mortgaged the same to certain parties for the sum of $6,000 — $1,000 of which she retained and the other $5,000 she gave to the church — which was all the church received for the transfer.

Immediately following the giving of the mortgage she reconveyed to Patrick J. Corvin, subject to the mortgage, a life estate in -the premises. On the 9th of February, 1893, Patrick J. Corvin married the defendant Lizzie J. Corvin, and from that time they occupied the premises until the death of Patrick, since which time she has continued in such occupancy. Shortly after the death of the father the plaintiff brought this action for the relief before • stated.

Upon the trial the plaintiff testified that just before the deed was given to the church she was called into a room in which were her mother and Father Hughes,- who was the pastor and also the. treasurer and one of the trustees of the defendant church, and that her mother then said to Father Hughes, “ This is my only child; this is the one that I want the property held in trust for by the church.” This testimony was subsequently stricken out by the court'— to which the plaintiff took an exception — and this is the first error alleged on the part of the appellant as calling for a reversal of the judgment. We are of the opinion that this testimony was properly, stricken out. It was not admissible under section 829 of the Code of Civil Procedure. It was, under the circumstances, the same as though the-plaintiff had participated in the conversation. (Matter of Bernsee, 141 N. Y. 389 ; Matter of Dunham, 121 id. 575; Matter of Eysaman, 113 id. 62; Holcomb v. Holcomb, 95 id. 316; Burnham v. Burnham, 46 App. Div. 513.) Flor did the court err in excluding testimony as to declarations made by Patrick J. Corvin after he had conveyed the premises to the church. Declarations or. acts of a grantor, made subsequently to his grant, cannot be received to the prejudice of his grantee’s rights, or persons claiming, under them. ( Williams v. Williams, 142 N. Y. 156 ; Sanford v. Ellithorp, 95 id. 48; Vrooman v. King, 36 id. 477; Jackson v. Aldrich, 13 Johns. 106; Padgett v. Lawrence, 10 Paige, 180.)

We are, however, of the opinion that the court erred in striking out the testimony as to declarations made by Patrick J. Corvin prior to the conveyance to the church. The witness Galvin testified that she had a conversation with the father and mother of the plaintiff in January, 1886. She was then asked the following -question : Q. Will you tell ns what the conversation was then, with Mr. and Mrs. Corvin in your presence, respecting the purchase which had been made of this house, and what it was purchased for and so on? A. I had been over to Brooklyn to call upon Mrs. Leary. She had a child that was very -sick and I took the child home to her grandmother. When I came home. I told Mr. and Mrs. Corvin that they should have Rose moved back there, and Mr. Corvin would not approve of it. He saidc She left of her own "accord and she could not come back there,’ and Mrs. Corvin said, ‘ Yes, dad, she will comeback.’ And he said, ‘Ho, she won’t.’ ‘ Well,’ she says, ‘Yes, she will come back, she has as much right to this house as you have; there is $1,300 of her earned money in this house and the house is hers after we leave it. This home is hers after we leave it and while she lives.’ Mr. Corvin says, ‘ You gave Rose the money.’ She says, ‘ Yes, I gave her the money, I admit, but she helped me to earn it, and when she gave it to you she was married and it was as much her husband’s as it was hers.’ And then Mr. Corvin left the house, and he went over to Brooklyn and he brought his daughter back, and moved her right back to the house. Mrs. Corvin said in this conversation last mentioned, ‘ You took her money with the intention of buying a home that we should have while we lived and which, should be hers when we leave it, and as long as she lived, and at our death it would be hers.’ I mean Rose’s, their daughter, she was the only heir for it. Mr. Corvin said, ‘Just as you say, that is right, I put the money there, and what you say is right.’ He said he put Rose’s money in the house with that intention. She said Rose had put $1,300 in the house and he said yes, and what he said he meant to stay by. He also said that Mrs. Corvin had given him the bonds that she had. He said she had given him $4,500, which he had put in that house and the money he got from Rose he used as purchase money in that house. He did not mention about paying off the $2,500 mortgages. He said the house was bought absolutely clear and they did not owe anything on it, and that it was their home and at their death it would be their daughter’s.”

All of this answer was subsequently stricken out and the plaintiff excepted. We think the ruling of the court was erroneous and necessitates a reversal of the judgment. It was very material testimony as bearing upon the plaintiff’s claim, and if believed by the trial court tended in no slight degree to establish the allegations of her complaint. These declarations of the father were made when he was in possession and before he had made the conveyance to the church. They were against his interest and Were, therefore, admissible as characterizing the extent of his possession. (Chadwick v. Fonner, 69 N. Y. 404; Abeel v. Van Gelder, 36 id. 513 ; Vrooman v. King, 36 id. 477; Loos v. Wilkinson, 110 id. 211.) And it appears from the opinion delivered by the learned justice at Special Term that this was the view entertained by him, because he says: “ The declarations of Patrick J. Oorvin, which are alleged to be against his interest, and which are said to have been made prior to the conveyance to the church, were clearly competent as against him * * . * and are, therefore, competent against those

deriving title through or from him,” and yet, notwithstanding this view, as appears from the record before us, all of the testimony relating to these declarations was stricken out and an exception given to the plaintiff. If the father had been living, and a defendant in this action, no one would seriously contend but that the testimony would have been competent as against him, and whenever the admissions of one having or claiming title to real estate would thus be competent against him, they are equally competent against all persons subsequently deriving title through or from him. (Chadwick v. Fonner, supra ; Jackson v. Bard, 4 Johns. 230; Pitts v. Wilder, 1 N. Y. 525 ; 1 Greenl. Ev. §§ 109-110.)

. It was, therefore, competent to prove these declarations against the defendants. This testimony, as before indicated, was very material. It bore directly on the issue involved and should have been considered by the trial court. If it be true that the plaintiff gave to her father money which was used by him in the purchase of the premises referred to in the complaint, under the agreement indicated in this testimony, then she has rights in that property as against all except bona fide purchasers for value, without notice, which a court of equity will recognize and enforce — certainly to the extent of the money advanced, together with interest thereon.

We are of the opinion that, on account of the error thus committed, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Yak Brunt, P. J., and Hatch; J., concurred; O’Brien, J., dissented.'

Ingraham, J. (concurring):

I concur in the reversal of the judgment upon the ground stated by Mr. Justice McLaughlin. The evidence of the declarations of Patrick J. Corvin, made while he was the owner of and in possession of the property, strongly corroborated the testimony of the plaintiff’s husband; and I think the arrangement under which the plaintiff ad vanced her money towards the purchase of the jiroperty was clearly established. • This money furnished by the plaintiff was her money, drawn from her accounts in savings banks, and delivered to Patrick J. Corvin upon the express agreement that the property, after the death of Corvin and his wife, should belong to the plaintiff. Corvin thus being intrusted with the plaintiff’s money to be applied to the purchase of the house upon these conditions, took a deed in his own name without the knowledge of the plaintiff and without providing therein for the remainder to which, by the agreement under which she advanced the money, she was entitled. Under such circumstances, it seems to me that a trust resulted in favor of the plaintiff as to such remainder. There is no evidence but that the money contributed by the plaintiff was the fair value- of such a remainder, subject to the two life estates.

In the case of Schierloh v. Schierloh (148 N. Y. 103) the provisions of the Revised Statutes (1R. S. 728, §§ 51, 53) in relation to resulting trusts were discussed, and it was said: It may be that in cases where an aliquot or some other definite part of the consideration has been advanced, the parties intending that some specific interest shall vest in the person paying it, or in proportion to the sum paid, there might be a resulting trust to that extent.” In this case the condition there considered exists. Under the agreement the plaintiff was to have the remainder after the death of her parents. Upon that understanding she contributed her money towards the purchase of the house. It was the duty of the defendant, who was intrusted with carrying this agreement into effect, that the deed taken by him should express the agreement. This he did not do; and 1 think it clear that a trust resulted in consequence of a failure of the defendant to carry out the agreement under which the plaintiff contributed her money. The plaintiff’s father had been for many years a policeman, and neither he nor the plaintiff were conversant with legal rules applicable to a case of this kind. There is no doubt that the father acted in entire good faith, and as the plaintiff was his only child it was natural that she should' inherit the property upon the death of himself and wife. Just what, induced the plaintiff’s parents to violate their agreement with her and make the conveyance specified in this case is not apparent. The fact that their only daughter had become addicted to the use of intoxicants so as to be unable to take care of herself would rather seem to be a reason for making some provision for her. But however that may be, she had the legal right to have the agreement under which she advanced her money to be applied to the purchase of this property enforced, and I think, upon the undisputed evidence, "she was entitled to a judgment to that effect.

Hatch, J., concurred.

Judgment reversed, new trial ordered, costs to the appellant to abide the event.  