
    Edward A. Robertson et al., App’lts, v. Lewis A. Sayre, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    1. Uses and trusts—Property taken in name of another—Right of DISPOSITION BY ALIENEE—1 R. S., 728, § 51.
    The plaintiffs as heirs in law of one R., seek to recover from the defendant the value of certain lots, and for an accounting. It appeared that some time prior to 1841, R. bought the lots at a foreclosure sale. That afterwards in 1841, at the request of R., the deed for the property was taken and recorded in the name of one M. The latter, when informed of the transaction, refused his acquiescence, or to take title. R. died in 1851, and at that time the title to the property still stood in the name of M, In 1881, M., by a quit-claim deed, transferred all his interest to defendant. Held, that under the statute of uses and trusts (1 R. S., 728, § 51), no trusts resulted to R. on the purchase of the property, but the title rested in M., the alienee named in the conveyance, and he having exercised his right of disposition, no recovery can be had by the plaintiffs in the present action.
    3. Equity—When aid may be invoked to enforce condition.
    When the defendant obtained his quit-claim deed from M., the latter said: “I will tell you what I will do; if any of Mr. Robertson’s heirs should turn up in distress, I will transfer this property to you, providing you will keep them,” to which defendant replied, “Iwill do so.” No consideration was paid by defendant for the transfer. Semble, whether a court of equity would enforce the payment, or performance of the consideration agreed upon.
    Appeal from a judgment entered upon the report of the Hon. Noah Davis, referee, appointed by the court at special term, to hear and determine the issues.
    The action relates to two lots of land in the city of New York for which the defendant obtained a quit-claim deed from one Messinger in 1881, and under which he claims title to the premises. The plaintiffs claim that, as heirs-at-law of one David H. Robertson, they are entitled to demand from the court that the value of the lots be fixed and declared, and that the defendant account for such value after being allowed the amount of any legal or equitable liens or charges he may have against the same, and that the amount found to be due plaintiffs be declared a lien upon said lots, and in default of payment of the amount found due, that the lots be sold to satisfy the same.
    
      The facts as found by the referee are substantially as.' follows:
    At a foreclosure sale made by William Mitchell, master in chancery, said David H. Robertson bought said two lots for fifty dollars, but gave the name of Thomas H. H. Mes-singer as the purchaser, and afterwards, on January 18, 1841, at Robertson’s request, said master in chancery made and executed his deed for said lots to said Messinger and delivered the same to Robertson, who recorded it in the office of the register of the city and county of New York. All this having been done by Robertson without the knowledge, assent or privity of Messinger. Robertson, then first informed Messinger thereof. The latter who had for • many years previously been in very friendly social' relations with Robertson and his family, when informed of Robertson’s action, became greatly offended and refused to acquiesce in the transaction and from the time of that interview, until Robertson’s death, they became and continued “estranged.”
    Robertson died in May, 1851, intestate, and the plaintiffs are his heirs-at-law.
    Although the title to the property stood of record in Messinger’s name, he was not aware of it, nor did he ever exercise or claim any ownership of it. In 1858, Messinger retired from business and removed from New York city, where he had lived for many years, to Stamford, Conn.
    In November, 1881, defendant’s attorney, Mr. Flanders, called upon him at Stamford, in relation to the lots, and was surprised to discover, at the interview, that Messinger did not know that the title to the property stood in his name; he had, in fact, forgotten all about the matter that Robertson had informed him of forty years before, until the attorney for defendant had refreshed his memory by referring to.the previous title, in which Robertson’s name appears as assignee of the mortgage foreclosed as aforesaid.
    T&e attorney was also surprised to discover that Messinger had a wholly erroneous idea of the value of the property, and that he was well acquainted with defendant, who had once been his family physician. Seeing the utility of' these discoveries, that Messinger was ignorant of his record, title; that he disclaimed any ownership to the lots by reason thereof; that he was wholly ignorant of their value, and that he was acquainted with defendant, the attorney within a day or two returned to Messinger, bringing with him the defendant and a blank quit-claim.
    What occurred at that interview is set forth in the eighth finding of fact.
    Messinger expressed his belief that the property must be-eaten up by taxes and sales for taxes, during the period of forty years since the deed to him had been recorded, and that they could be worth nothing. He fully explained the-transaction about the deed being made to him through Eobertson, and his rebuking Robertson for thus using his name without authority; that he claimed no interest in the property; that it belonged to Robertson’s heirs, some of whom he knew to be dead, and the others were scattered and unknown to him, and that if any of them had appeared and requested a deed, he would have given it to them.
    Then, after some conversation concerning a supposed interest of the defendant in the lots, which interest was really nothing, although Messinger was led by defendant to believe that it was something, Messinger said: “I will tell you what I will do; if any of Mr. Robertson’s heirs should turn up in distress, I will transfer this property to you, providing you will help them.” To which defendant replied: “Agreed; I will do so.” And when asked the amount of such help, Messinger named one or two hundred dollars—that being, as he supposed, the value of the lots when the deed was made to him, and before they had been eaten up by taxes and assessments.
    A quit-claim deed was then made and executed by Mes-singer to the defendant for all his right, title and interest in the lots, but no consideration whatever was paid by defendant therefor.
    The other facts appearing in the case are that, about, or previous to, the time Eobertson had the deed made in the name of Messinger, there were four judgments against Eobertson unsatisfied of record.
    Upon these facts the learned referee finds, substantially, not only that the title to the two lots vested in Messinger under the statute of uses and trusts, but that even although Messinger never claimed any ownership to them, and conceded that .the property belonged to Robertson’s heirs, and was' always ready and willing to convey the same to them, yet a third person who, by concealment or misrepresentation of facts, and without consideration and with full knowledge of Messinger’s disclaimer of ownership, induced Messinger to give a quit-claim deed of the property to him, that deed would vest a good title in him as against the plaintiffs.
    
      James A. Deering, for app’lts; A. B. Carrington, for resp’t.
   Brady, J.

By the statutes of uses and trusts (1 R. S., 728, § 51) the rule of the common law was changed, and it was declared that no trust should result to the person paying the money on a purchase of real estate, but the title should rest in the alienee named in the conveyance. The fifty-third section excepted cases where the alienee should have taken an absolute conveyance to himself without the knowledge or consent of the person paying the money.

Here, as we have seen from the facts, stating them as broadly as they can be given for the plaintiff, it is not to bejlisputed that the money was paid by Eobertson, and, the conveyance for his benefit taken by him in the name-of another, namely, Messinger. The fifty-third section has, therefore, no possible application. The transaction was-within the terms and spirit of the statute, and was one inveighed against, inasmuch as Robertson was insolvent, and the design of it was clearly to evade the application of the purchase to the payment of his debts. The effect of section 51 on such an incident cannot be questioned. Garfield v. Hatmaker, 15 N. Y., 478; McCartney v. Bostwick. 32 id., 59; The O. N. Bank v. Olcott, 46 id., 16; Everett v. Everett, 48 id., 218.

Messinger being invested with the title by operation of law, albeit he disclaimed the whole proceeding, had the absolute right to dispose of it as he pleased. The payer of the money forfeited all rights which he might have acquired by taking the conveyance to himself. He deliberately incurred the penalty and sacrificed his money.. Messinger having this right exercised it, and as he committed no violation of law or rule of public policy, no court can undo the act either for friend or relative of the purchaser, in fact. Whether a court of equity would enforce-the payment or performance of the peculiar consideration agreed upon for the transfer to the defendant, is now not a subject for consideration.

The learned counsel for the plaintiffs thinks that the case of Foote v. Bryant (47 N. Y., 544) sustains the right of his clients to indemnity from the defendant, but this thought is an erroneous one. In that case it was held that the alienee could, if he chose, regard the equitable rights of the person paying the money, and secure them by a lawful declaration of trust or conveyance ; but if, in doing so, an absolute conveyance were executed to a third person without the knowledge of the cestui que trust, it brought the-transaction within the provisions of the fifty-third section already mentioned. Here, as we have seen, there was a disclaimer by the alienee of the trust, and no attempt of his of any kind to secure the equitable rights of the payer of the money. The case is, indeed, bald of .any preservative of them, and the judgment must be affirmed. The result seems to be harsh, but the statute is imperative.

Ordered accordingly.

Daniels, J.

I do not think the statute avoiding a resulting trust, when the consideration is paid by one person and the title is taken in the name of another, applies to this case. For the deed was not delivered to the grantee named in it, but he refused to accept it, or in any manner sanction the purchase or the conveyance to himself.

The title on this state of facts did not vest in him. But that circumstance will not support the action which is in favor of the heirs of the former owner of the land, and whose interest was in form sold at the foreclosure sale. It proceeds upon the ground that the person named _ as the purchaser in the master’s deed was fraudulently induced by the defendant to quit-claim the land to him for a nominal consideration. But the grantor in this deed is the person to redress that wrong if it has been perpetrated. The plaintiffs have no right to complain of the deception by which he was induced to give the deed. If they have any remedy, it will be to set aside the sale for the reason that the nominal purchaser refused to accept or take the title. Whether even that is available to them is not a subject to be decided in this action, which is for an entirely different object. As the case is now before the court there seems to be no other way open than to affirm the judgment.

Van Brunt, Ch. J., concurs.  