Curtin v. Curtin

New York Supreme Court

Curtin v. Curtin

11 N.Y.S. 938, 34 N.Y. St. Rep. 956, 1890 N.Y. Misc. LEXIS 2437

DecidedDecember 10, 1890

StatusPublished

This text of 11 N.Y.S. 938 (Curtin v. Curtin) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Curtin v. Curtin, 11 N.Y.S. 938, 34 N.Y. St. Rep. 956, 1890 N.Y. Misc. LEXIS 2437 (N.Y. Super. Ct. 1890).

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Opinions

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. Carrie 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 William 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 de[939]*939fendant claims to hold the property is as follows: “When 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 persons by whom such payment shall be made, but the title shall vest in the persons named as the alienee in such conveyance, subject only to the provision of the next section. ” 1 Eev. St. p. 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 redeeded 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.

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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. Carrie 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 William 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 de[939]*939fendant claims to hold the property is as follows: “When 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 persons by whom such payment shall be made, but the title shall vest in the persons named as the alienee in such conveyance, subject only to the provision of the next section. ” 1 Eev. St. p. 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 redeeded 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.

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Bluebook (online)

11 N.Y.S. 938, 34 N.Y. St. Rep. 956, 1890 N.Y. Misc. LEXIS 2437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curtin-v-curtin-nysupct-1890.