
    Jane E. Guy, App’lt, v. Charles A. Langdon et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 12, 1895.)
    
    1. Gift—Inter vivas—Trustee.
    To constitute a valid gift inter vivas, the donor must part with all dominion and control over the thing given, either to the donee or to another in trust for him.
    3. Same.
    An agreement by which a person agrees to give another all his property, in consideration of which the latter agrees to support him and his wife during their lives and to pay to his daughter a certain sum, together with a delivery of the property in pursuance of such agreement, does not constitute a gift to the daughter, delivered to the promisee for. her.
    Appeal from a judgment dismissing the complaint.
    
      Charles P. Patterson, for app’lt; J. M. Whitman, for respt’s.
   Mayham, P. J.

The complainant in this action alleges, in substance, that on the 1st day of January, 1865, and from that time until the making of the paroi agreement thereinafter mentioned, Henry D. Langdon, her father, was the owner of real and personal property of the value of over $10,000, and that subsequently, and in the month of January, 1865, Henry D. Langdon entered into an agreement with his son Charles A. Langdon, defendant herein, in and by which, among other things, he agreed to give Charles A. Langdon all of his real and personal property, in consideration of which the defendant Charles A. Langdon agreed to support his father and mother during their respectives lives, and their daughter Lydia so long as she chose to reside at home, and pay to his two sisters, Lydia and this plaintiff, each the sum of $1,000, deducting, however, from the sum so to be paid the plaintiff, the sum of $188.13, before that time advanced to Her by her father. The complainant also alleged that the agreement between her father and the defendant Charles A. Langdon was duly consummated by the defendant’s taking possession of all the real and personal property of his father, and supporting him and his wife during their lives, and that he has ever since the making of the contract, owned, used, and disposed of all the personal property of his father, Henry D. Langdon, and still has the possession and occupancy of the real estate covered by such contract; that Henry D. Langdon died on the 20 th of July, 1892, and His wife died some years previously. The complaint charges that the sum of $811.87 is due her on the contract above referred to, for which she asks judgment, and that the same be adjudged a specific lien upon the premises described in the complaint, prior and superior to any other incumbrance. The answer substantially admits the allegations of the complaint, but alleges, among other things, that Henry D. Langdon violated the agreement set up in the complaint, by executing a mortgage to plaintiff and Lydia I. Boyce each of $1,000, also by giving to other parties a deed of the premises described in the complaint, while the defendant was in the possession of the same, under the agreement set out in the plaintiff's complaint. The answer also alleges that the defendant was compelled to and did bring an action in the supreme court against Henry D. Langdon and this plaintiff, to set aside such mortgage and deed, on the ground that the same were in fraud of the rights of the defendants. The answer also, among other things, alleged that, at the time of taking the mortgage of Henry D. Langdon, the plaintiff induced the said Henry D. Langdon to destroy the will devising the real estate to the defendant, which he was, as a part of the contract, bound to make. The answer also alleges that the plaintiff recovered in the action to set aside the mortgage and deed, and thereon recovered a judgment for costs, which has not been paid, and which he, in said answer, offers to set off against the plaintiff’s claim. On the trial, the judgment roll in the judgment in favor of this defendant, against this plaintiff and others, in the action to set aside the mortgage and deed, referred to in the answer in this action, was put in evidence, wherein it appears that it was adjudged in that action that the contract was one enforceable in equity. The referee in that action found as follows:

“ That the plaintiff should take possession of said farm and the personal property therein, and have such personal property, and should support the said Henry and his wife during their lives, and their unmarried daughter, Lydia, until she married, and pay the said Henry D. Langdon’s two daughters,' Lydia and Jane, the sum of $1,000 each (less what Henry had advanced to them), and that said plaintiff should have the personal property on said place, and the use of the real estate, and said Henry would by will devise the real estate to plaintiff on - his death. Said payment to-daughters was to be made on the death of said Henry, or before if plaintiff was able to make the payments.”

The referee in that action found the following as conclusions of law: [

“ I find that plaintiff is the equitable .owner of the estate described in the complaint, and that said Henry D. Langdon held the title therefor in trust, and had no right to make the deeds and mortgages above mentioned. • His execution of said deeds and mortgages was in violation of plaintiff’s rights, and a fraud upon plaintiff. That the plaintiff is entitled to a judgment setting aside said mortgages and deeds. I therefore direct that judgment be entered in favor of plaintiff, against the defendant, adjudging the' said mortgages and said deeds fraudulent and void; and that said mortgages and deeds, and each of them, be canceled and set aside, and the said premises covered by them be adjudged and decreed free and clear from any lien or charge on account of said mortgages or deeds, or either; and that said Henry convey said ten-acre lot to plaintiff, and that the plaintiff recover the costs of this action of the defendants. April 20, 1882.”

Upon these findings of fact and conclusions of law, a decree was-perfected containing the following provisions:

“And it is further ordered, adjudged, and decreed-that the equitable title to the premises last aforesaid is in the said plaintiff,. Charles A. Langdon, free, clear, and discharged of any and every lien, charge, or incumbrance whatsoever, so created by or on account of said mortgages to said defendants Jane E. Guy and Lydia I. Boyce, and the deed to the defendants Thomas, James, and Alexander Bensmore.”

The evidence discloses that, after the date of the report of the-referee in the action to set aside the mortgage and deed above referred to, Henry B. Langdon entered into a written agreement, with the defendant, reciting the existence of the agreement first above referred to, and the costs and expense, to which the defendant had been subject by reason of the giving of the mortgage and deed, which had been vacated by the court, and reciting also the-agreement of the defendant to pay his sisters each $1,000, and in and by such agreement assumed to release the defendant from the payment of such sums to his sisters, and requiring him only to support Henry B. and his wife, as the consideration of the transfer of his property, real and personal to the defendant.

The plaintiff in this action contends that by the first contract between Henry B. Langdon and Charles A. Langdon, the validity of which was established in the action of Charles A. Langdon against Henry B., this plaintiff, and others, a valid trust was created in her favor for $1,000, and that the same is and was irrevocable either by the settler or by anyone else in the contract creating the trust, either to annul or modify the same, and that the defendant, by accepting the personal property and the possession of the real estate, and thereafter asserting and enforcing his right to the same under the terms of that contract, became the trustee for this plaintiff for the $1,000 given by Henry D. Langdon to her, and, having as such trustee taken possession of the property out of which this $1,000 was to be paid, the gift to her became a valid gift inter vivas from her father, with a valid and immediate delivery of the property given to the defendant as trustee for her use, and could not be divested by the donor and trustee without her consent. To uphold this contention, it must it seems be held that the delivery of the property of Henry D. Langdon to the defendant constituted a valid gift of the $1,000 to the plaintiff, and for her benefit, delivered to the trustee for her use. There being no legal liability from Henry D. to the plaintiff for the payment of this $1,000 to her, this transaction is unlike the case of Lawrence v. Fox, 20 N. Y. 268, and the plaintiff cannot rest a recovery upon the authority of that case. In that case the party to whom the promise was made for the benefit of the plaintiff was the debtor of the plaintiff. No such condition exists here, and the plaintiff, if she can recover at all, must do so upon the theory that Henry D. made a valid executed gift of this money to her, with a valid delivery to the defendant, as trustee, for her benefit. To constitute a valid gift inter vivas, the donor must part with all dominion and control over the thing given. It seems to me that in this respect the transaction failed to constitute a gift. The most that can be claimed for the contract between the defendant and his father was that a paroi ex-ecutory agreement was made between them for the payment by the defendant, at some future time, of the sum of $1,000,' in consideration of all the personal and real property of Henry D., the legal title to the real property to remain in Henry D. during his life, and the transfer to depend upon the support of Henry D. and wife by the defendant during their lives. Clearly, the vesting of this property in the defendant depended upon the happening of some future event. Suppose, after the making of this contract, the defendant had failed to furnish the support, and thus lost his equitable rights under this contract; could it be insisted that an equitable charge had been created against this property for the plaintiff’s $1,000, which she could enforce through the defendant as. her trustree ? The answer is that she could not. There was, therefore, no such valid gift as would divest the donor of the title and possession of the subject of the gift. Nor was there such a vesting of the title and possession in the defendant, as trustee, at the time of making the contract, as, to make him liable to the plaintiff as her trustee for this $1,000. Failure on the part of the defendant to perform this contract for support would clearly have worked a forfeiture of his claim, under the contract, to this property. That being so, it cannot be said that there was such a complete delivery of this $1,000 by Henry D. Langdon to the defendant, at the time of making this contract, as to put it beyond the power of the alleged donor to reclaim the same, or beyond the power of the defendant, by his failure to perform, to forfeit his rights to the property under the contract. There was not, therefore, such a complete delivery of the subject of the alleged gift as to work an immediate transfer of the title, and vest the same in a trustee, for the benefit of the plaintiff, as is necessary to constitute a valid gift inter vivas.

But it is.insisted by the appellant that the defendant, by invoking the aid of the court of equity in the enforcement of this contract, has estopped himself from alleging the invalidity of the gift of this $1,000 to the appellant, as that gift constituted a part of the consideration for this contract. There would be force in that contention had the plaintiff accepted and adopted the gift under the contract, and not by her own act, in conjunction with the alleged donor, repudiated it, and taken a mortgage on the premises embraced in the contract, denying the validity of the gift; but by that act it is manifest that she treated the-gift as invalid, and did not accept it in the form in which the contract left it. But the equitable relief sought and obtained by the defendant grow out of a performance on his part, and operated only between the parties to the contract, and did not relate back and validate a gift to a stranger, not a party to the contract, which was void in its inception, for want of delivery. As was said by the learned trial court, the equity in this case, which was enforced by the action, arose only between the parties creating it, clearly not for the'benefit of strangers to the contract, and lie adds :

“ To say that equity works out in favor of [the plaintiff] Jane is to admit that she had no gift in the beginning; that the gift to her * * * was wholly dependent at all times upon the will of the contracting parties." ‘‘This quality defeats the contention of a gift in presentí, and no other kind of gift is recognizable."

The weakness in this case on the part of the plaintiff arises out of the fact that there was no valid gift of this $1,000 to the plaintiff or to the defendant, as her trustee for her use. That being so, we think the learned trial court was correct in his conclusions,- and that the judgment must be affirmed.

Judgment affirmed, with costs.

All concur.  