Brown v. Cherry

59 Barb. 628, 1871 N.Y. App. Div. LEXIS 46

• Court: New York Supreme Court
• Decided: June 5, 1871
• Status: Published

Opinion

By the Court, Johnson, J.

The only question in this case, of any importance upon the merits, is, whether the mortgage in question is a valid and subsisting incumbrance •upon the premises mortgaged, as against any interest which Mrs. Caroline Stewart may have therein.

The legal title to the premises was apparently in the plaintiff, who was the mortgagor. He held the same by virtue of two conveyances from previous owners in common, which were absolute on their faces, and apparently vested in him a complete and perfect title. It appears, however, from the evidence and the findings of the referee, that one equal third part of the said premises was conveyed to the plaintiff by the then owner, at the request of Mrs. Stewart, who paid the consideration, and who requested the plaintiff by parol, to take the title to himself, and hold the premises for her. ¡Nothing was said, as the referee finds, about the form of the deed. Mrs. Stewart was not present when it was made, but she directed that it should be deeded to the plaintiff, for her benefit, and supposed it had been so deeded. This, I think, brings the case clearly within the statute (1 R. S. 728, § 51) where the grant is made to one person for a valuable consideration paid by another. ¡No trust whatever, in such case, results in favor of the person by whom the payment is made, but, as to him, the title vests absolutely in the grantee. The case does not fall within section 53 of the statute, for the reason that the title was taken in the name of the plaintiff, with the knowledge and consent of Mrs. Stewart, and it is not found, nor does it appear by the evidence, that she either directed or expected the convéyauce to be different from what it was, in its'terms. The plaintiff was to take the title to himself, and hold for her, manifestly as a naked or secret trust, and the presumption is, in the absence of evidence and finding of fact to the contrary, that the conveyance was made in ■ accordance with the understanding of all the parties to the transaction. In this respect the case differs from that of Lounsbury v. Purdy, (18 N. Y. 515.) In that case it was found, as a fact, that the plaintiff intended and expected that the deed would appear, upon its face, and by its terms, to be for her benefit. That was the interpretation of the finding in that case, and the decision was placed expressly upon the ground that it was found, as matter of fact, that the deed •had been taken by the alienee, as an absolute conveyance, in his own name, without the knowledge or consent of the plaintiff. Ho such fact is found in this case, and the law does not raise the presumption, in the absence of such finding. It certainly cannot be found or presumed, from the evidence in the case, that she designed or expected to have the conveyance in the form of a conveyance in trust, for any of the purposes authorized by statute; for her husband was allowed by her to have the sole and exclusive management and control of her interest, at all times, after the conveyance; and she testifies that he was her agent for that purpose. This view alone, in my opinion, completely sustains the referee’s conclusion of law. As matter of law, the whole title was in the plaintiff, and no use or trust resulted or existed in her favor.

But even if it could be found from the evidence, as I think it cannot, that she did not understand that the conveyance to the plaintiff was to be made absolute in its terms, or consent that it should be so made, her interest would be but an implied or resulting trust, and cannot be alleged or established, to defeat or prejudice the mortgage, which was certainly given for a valuable consideration, unless the mortgagee .had notice of the trust, either at the time, or before the execution and delivery of the mortgage.

Upon the question of notice, the referee has expressly found, as matter of fact, that the mortgagee had no notice or knowledge to put him upon inquiry, as to the existence of the trust. The plaintiff’s counsel controverts this finding of fact, and insists that it should have been found the other way. But looking at the whole case, and the entire examination of the'witness by whom the notice was sought to be established, I am of the opinion that the referee was right in this finding of fact. The testimony is vague and indefinite, both as to the time and place of giving the information, and also as to its precise character. The referee had the witness before him, and could judge much better than we can whether the statements of the witness, such as they were, were entitled to sufficient credit, and carried such weight as to occasion the defeat of the mortgage which the witness himself had caused to be made.

Cherry, the mortgagee, was dead, and certainly parol evidence, of notice to him, years before the mortgage was executed, should be clear, explicit and of undoubted credit, to justify a finding that such notice had been given. The witness did not claim or pretend that any such notice was given at the time he procured the money to be advanced by the mortgagee, and the mortgage to be given by the plaintiff, but puts it at a time long anterior to that, and in a conversation on another and different topic. Upon this ground, also, the conclusion of law in the report is fully sustained. The plaintiff has no personal interest in the action, but brings it solely for the benefit of Mrs. Stewart, to prevent the foreclosure of the mortgage against what is regarded between them as her interest.

This disposition of the case upon the merits, renders it wholly unnecessary to examine the question of the admissibility of the letters of the husband in evidence. Those letters were introduced only on the question of the agency of the husband, and his authority to cause a valid mortgage to be made upon property held by or for his wife. But in either view of the case, which I have taken, and which I think is entirely conclusive against the plaintiff’s right of action, that question is- wholly immaterial, and could not possibly prejudice the plaintiff, even if they were improperly received. I incline, however, to the opinion that they were competent evidence, in connection with the other evidence in the case, for the purpose for which they were obviously offered and received.

[Fourth Department, General Term, at Buffalo, June 5, 1871.

The judgment must therefore be affirmed, with costs.

Mullin, P. J., and. Johnson and Talcott, Justices.]