Miller, J.:
The plaintiff is armed with the legal title, and the judgment in her favor in this ejectment suit must be affirmed, unless the equitable title, js in the defendant. The-proof shows that on October’ 31, 1882, one Michael Dalton paid $800 for two parcels of land, including the one in question, and with full knowledge took a conveyance to this plaintiff, his niece, who subsequently learned of it; that the plaintiff on or about October 25, 1883, in the presence of. said Dalton, executed a deed of the premises, blank as to grantees, and on the following day her bond for $2,000, secured by a mortgage on the premises, upon which the sum of $2,000 was borrowed and used by Dalton to improve the property; that said blank deed remained unchanged in Dalton’s possession until his death, when it passed into the possession of his widow, and upon her death into that of the defendant; that Dalton occupied the property and had the beneficial usé of it until his death in 1892, whereupon'his widow, his sole devísete, succeeded to such possession and use until her death in 1894, when the defendant took possession, claiming as her residuary devisee; that the plaintiff never asserted her title or right to possession until shortly before .the commencement of this action. While Dalton had uninterrupted possession, it does not appear that he ever claimed it under an equitable title or in hostility to the plaintiff’s title; neither his will nor that of his widow specifically refers to this property.
[91] The learned counsel for the appellant invokes the - equity powers of the court upon several distinct grounds, which I will summarize and state what seems to me the patent and conclusive answer to each, to wit: First. That the proof establishes an agreement of the plaintiff to hold the title as trustee, which has been so far performed as to take the case out of the Statute of Frauds, or at least that equity will not suffer the Statute of Frauds to be used as an instrument to perpetrate a fraud. It will be necessary to refer only to the fundamental 'error involved in the assumption that there was such an agreement, because there is not a scintilla of evidence to warrant it; on the contrary, there could have been no agreement before the conveyance of which the plaintiff was ignorant, and the subsequent conduct of the parties, upon which so much stress is placed, is as consistent with the absence of an express agreement subsequent to the conveyance as was the conveyance itself with the absence of any agreement or even knowledge on the plaintiff’s part prior thereto. Counsel asks the court to infer an agreement from the circumstances upon which he relies to take it out of the Statute of Frauds. The error of this is so patent that it is unnecessary to consider whether the circumstances relied upon would have been sufficient had the agreement itself been proved; second, that the blank deed conceding it to be insufficient to pass title (see Allen v. Withrow, 110 U. S. 119) proves the trust, and considered solely as an evidentiary fact, satisfies the Statute of Frauds; but this proposition, like the last, is based upon a false premise. It is true that the statute respecting the creation and proof of trusts (2 R. S. 134, § 6 ; Id. 135, § 7, as amd. by Laws of 1860, chap. 322, and revised in Eeal Prop. Law [Laws of 1896, chap. 517], § 207) simply enacts a rule of evidence, but the .writing relied upon must be sufficient to prove the nature and extent of the trust, and cannot be aided by parol evidence. (Cook v. Barr, 14 N. Y. 156 ; Hutchins v. Van Vechten, 140 id. 115.) The blank deed proves nothing except that at the time the plaintiff was willing to convey the property. The very fact that Dalton had this blank deed and made no use of it is suggestive to mv mind of a deliberate intent to leave the title in the plaintiff; but whatever inferences different minds might draw from the circumstance, it utterly fails to prove that there was an express contract that the plaintiff .should hold the title in trust; third, that the plaintiff [92] is estopped from'asserting any title. This assertion also is based upon , a fundamental error. I followed the ingenious argument of counsel and have read'his voluminous brief in vain to discover a single circumstance tending to show that any one has been misled or injured by any conduct of the plaintiff, Dalton certainly was not misled when, without her knowledge^ he took title in her name, presumptively knowing that the transaction vested the title in her, and that no trust to him could result therefrom (1R. S. 728, .§§ 51-53; Real Prop. Law [Laws of 1896, chap. 547], § 74) ; he was not injured by her conduct in allowing him to have the beneficial use of it or in borrowing money upon her bond and mortgage with which to "improve it-so as: to increase the value of such .use-; and while it is asserted that he expended money in improvements in excess of the sum so borrowed, there is no proof of it, unless it can be inferred from the testimony that the property is now worth $4,500, but this increase can easily be accounted for. by the rise in values and the increase in the cost of building materials; and even if he did expend his own money in improvement's, there is not the slightest evidence that lie was induced to do' so by any promise or agreement of hers, and concededly the value of the use was much .more than the entire amount expended; besides, upon the record here, we must hold that lie acted throughout with .open eyes knowing that the title was in his niece, and Certainly neither the widow nor the defendant can claim to be injured, by the enjoyment of the beneficial use of the property.-. If I have understood the argument addressed to us by the learned counsel for the appellant, the foregoing is a fair summary of it; however, I do not understand him dogmatically to assert that any one of the several positions taken by him is invulnerable, but rather that all are ' advanced with the hope that their combined force may persuade us to impress a trust upon the plaintiff’s title so as to secure what- we may deem to be just in this particular case, and it is urged that inas.mitch as equity may imply a trust from facts, i. <?., the nets and conduct of- the parties -independent of their verbal agreements, we may imply a trust in this case without doing violence either, to the Statute of Frauds or to the statute against resulting trusts hereinbefore referred to.. The Statute of Frauds may be eliminated from the discussion because as already shown there is not a scintilla of evidence to prove an express agreement, and while I do not' question the gen[93] eral statement that a.trust may arise from facts, my research has failed to disclose a case, and certainly none is cited, in which a trust has been implied from the facts involved in the case at bar since the abolition of the common-law rule by the Revised Statutes (1R. S. 728, §§ 51-53). Of course at common law an implied or resulting trust would have arisen from the single fact of the payment of the consideration by Dalton and this lipón the theory that the person paying the consideration must have intended to-liave the beneficial interest, but here the statute steps in and says that no trust can result' from such a transaction, but that the title shall vest in the grantee; so Dalton, presumed to have known the law, must be supposed to have intended the result provided by the statute. I have supposed that implied trusts, to which class resulting trusts belong, always arose from the presumed intention of the parties, from some ins
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Miller, J.:
The plaintiff is armed with the legal title, and the judgment in her favor in this ejectment suit must be affirmed, unless the equitable title, js in the defendant. The-proof shows that on October’ 31, 1882, one Michael Dalton paid $800 for two parcels of land, including the one in question, and with full knowledge took a conveyance to this plaintiff, his niece, who subsequently learned of it; that the plaintiff on or about October 25, 1883, in the presence of. said Dalton, executed a deed of the premises, blank as to grantees, and on the following day her bond for $2,000, secured by a mortgage on the premises, upon which the sum of $2,000 was borrowed and used by Dalton to improve the property; that said blank deed remained unchanged in Dalton’s possession until his death, when it passed into the possession of his widow, and upon her death into that of the defendant; that Dalton occupied the property and had the beneficial usé of it until his death in 1892, whereupon'his widow, his sole devísete, succeeded to such possession and use until her death in 1894, when the defendant took possession, claiming as her residuary devisee; that the plaintiff never asserted her title or right to possession until shortly before .the commencement of this action. While Dalton had uninterrupted possession, it does not appear that he ever claimed it under an equitable title or in hostility to the plaintiff’s title; neither his will nor that of his widow specifically refers to this property.
[91] The learned counsel for the appellant invokes the - equity powers of the court upon several distinct grounds, which I will summarize and state what seems to me the patent and conclusive answer to each, to wit: First. That the proof establishes an agreement of the plaintiff to hold the title as trustee, which has been so far performed as to take the case out of the Statute of Frauds, or at least that equity will not suffer the Statute of Frauds to be used as an instrument to perpetrate a fraud. It will be necessary to refer only to the fundamental 'error involved in the assumption that there was such an agreement, because there is not a scintilla of evidence to warrant it; on the contrary, there could have been no agreement before the conveyance of which the plaintiff was ignorant, and the subsequent conduct of the parties, upon which so much stress is placed, is as consistent with the absence of an express agreement subsequent to the conveyance as was the conveyance itself with the absence of any agreement or even knowledge on the plaintiff’s part prior thereto. Counsel asks the court to infer an agreement from the circumstances upon which he relies to take it out of the Statute of Frauds. The error of this is so patent that it is unnecessary to consider whether the circumstances relied upon would have been sufficient had the agreement itself been proved; second, that the blank deed conceding it to be insufficient to pass title (see Allen v. Withrow, 110 U. S. 119) proves the trust, and considered solely as an evidentiary fact, satisfies the Statute of Frauds; but this proposition, like the last, is based upon a false premise. It is true that the statute respecting the creation and proof of trusts (2 R. S. 134, § 6 ; Id. 135, § 7, as amd. by Laws of 1860, chap. 322, and revised in Eeal Prop. Law [Laws of 1896, chap. 517], § 207) simply enacts a rule of evidence, but the .writing relied upon must be sufficient to prove the nature and extent of the trust, and cannot be aided by parol evidence. (Cook v. Barr, 14 N. Y. 156 ; Hutchins v. Van Vechten, 140 id. 115.) The blank deed proves nothing except that at the time the plaintiff was willing to convey the property. The very fact that Dalton had this blank deed and made no use of it is suggestive to mv mind of a deliberate intent to leave the title in the plaintiff; but whatever inferences different minds might draw from the circumstance, it utterly fails to prove that there was an express contract that the plaintiff .should hold the title in trust; third, that the plaintiff [92] is estopped from'asserting any title. This assertion also is based upon , a fundamental error. I followed the ingenious argument of counsel and have read'his voluminous brief in vain to discover a single circumstance tending to show that any one has been misled or injured by any conduct of the plaintiff, Dalton certainly was not misled when, without her knowledge^ he took title in her name, presumptively knowing that the transaction vested the title in her, and that no trust to him could result therefrom (1R. S. 728, .§§ 51-53; Real Prop. Law [Laws of 1896, chap. 547], § 74) ; he was not injured by her conduct in allowing him to have the beneficial use of it or in borrowing money upon her bond and mortgage with which to "improve it-so as: to increase the value of such .use-; and while it is asserted that he expended money in improvements in excess of the sum so borrowed, there is no proof of it, unless it can be inferred from the testimony that the property is now worth $4,500, but this increase can easily be accounted for. by the rise in values and the increase in the cost of building materials; and even if he did expend his own money in improvement's, there is not the slightest evidence that lie was induced to do' so by any promise or agreement of hers, and concededly the value of the use was much .more than the entire amount expended; besides, upon the record here, we must hold that lie acted throughout with .open eyes knowing that the title was in his niece, and Certainly neither the widow nor the defendant can claim to be injured, by the enjoyment of the beneficial use of the property.-. If I have understood the argument addressed to us by the learned counsel for the appellant, the foregoing is a fair summary of it; however, I do not understand him dogmatically to assert that any one of the several positions taken by him is invulnerable, but rather that all are ' advanced with the hope that their combined force may persuade us to impress a trust upon the plaintiff’s title so as to secure what- we may deem to be just in this particular case, and it is urged that inas.mitch as equity may imply a trust from facts, i. <?., the nets and conduct of- the parties -independent of their verbal agreements, we may imply a trust in this case without doing violence either, to the Statute of Frauds or to the statute against resulting trusts hereinbefore referred to.. The Statute of Frauds may be eliminated from the discussion because as already shown there is not a scintilla of evidence to prove an express agreement, and while I do not' question the gen[93] eral statement that a.trust may arise from facts, my research has failed to disclose a case, and certainly none is cited, in which a trust has been implied from the facts involved in the case at bar since the abolition of the common-law rule by the Revised Statutes (1R. S. 728, §§ 51-53). Of course at common law an implied or resulting trust would have arisen from the single fact of the payment of the consideration by Dalton and this lipón the theory that the person paying the consideration must have intended to-liave the beneficial interest, but here the statute steps in and says that no trust can result' from such a transaction, but that the title shall vest in the grantee; so Dalton, presumed to have known the law, must be supposed to have intended the result provided by the statute. I have supposed that implied trusts, to which class resulting trusts belong, always arose from the presumed intention of the parties, from some instrument which, though failing in express terms to create a trust, clearly showed such to have been its ¡purpose, from some situation in which the intention of the parties could only thus be effectuated, or from some act unecpiivocally showing such to have been the intent, and that constructive trusts, sometimes I think inaccurately termed implied trusts, were created by the courts without regard to the intention of the parties to prevent the abuse of positions of trust and confidence" and to circumvent fraud. Certainly the plaintiff is not a trustee ex maleficio / she did not obtain the title by any fraud, artifice or misrepresentation, by the misuse of any confidential or fiduciary relation, or pursuant to any agreement; and it seems to me we cannot say that the parties intended to create a trust except we do it in the teeth of the statute. The title, of course, vested eo instanti upon the delivery of the deed from Bliss. If Dalton had died the following day, no one would seriously question that the absolute title had vested in the plaintiff, because a case would then be presented barren of facts except those from which the statute declares no trust can result. It seems to. me, therefore, that the appellant must take either of two horns of the dilemma; either that the absolute title vested in the plaintiff upon the delivery of the deed from Bliss, and that she subsequently divested herself of her beneficial interest by allowing others to use the property, or else that her subsequent conduct may be referred back to the time of the deed so as to limit the estate which she took under it although she had no knowledge of it at the [94] time of its delivery. I did not. suppose that the owner of real property could divest himself of his beneficial interest by allowing others to enjoy it, in the absence of a declaration of trust evidenced by the writing required by. the statute,, or that the nature of an estate created by deed could rest in uncertainty until determined by the subsequent conduct- of the parties; the resulting insecurity of titles attendant Upon either of these propositions is too apparent for either to he adopted in the teeth of statutes clearly defining the method by which estates in land may be created. • .
Conceding for the moment that the legal title should yield to the intention'of the parties, I am utterly unable to understand how such intention can he- demonstrated from this record, and surely nothing: short of a demonstration will suffice to overthrow the legal title. If it were clear that the parties intended a trust, and to my mind other hypotheses are equally warranted, how are we know its. duration ? To be sure, the plaintiff was silent eight years after the death of her aunt, and it may be assumed that, the defendant’s possession was under a claim of title adverse to hers; it may .also be assumed that she made the statement attributed to her by the defendant’s counsel upon the occasion of his requesting her to execute a deed, but the statute (Code Civ. Proc. § 369 et seq.) has fixed twenty years as the period required for an adverse possession to ripen into a title, and it seems to me that this statute sufficiently assures repose of titles without the intervention- of equity, particularly when the basis of such intervention is the silence and -equivocal’ statements of a woman probably ignorant of her rights.
I understand it to be conceded that had the plaintiff orally agreed subsequent to the. conveyance from Bliss, and we have seen there could have1 been no prior agreement, to hold the property in trust, such agreement would be void as within the Statute of Frauda and would furnish no basis for equitable interference, because though equitable doctrines are flexible when dealing with cases, of fraud, the breach of. a void agreement is a moral and not a legal fraud (Wheeler v. Reynolds, 66 N. Y. 227, 234; levy v. Brush, 45 id. 589); but it is urged that, as the plaintiff has. committed neither moral nor legal fraud, a court of equity may.interpose and upon facts thought to be sufficient to satisfy its Conscience impress a trust upon her legal title; The authorities relied upon in support [95] of such dangerous exercise of remedial jurisdiction do not warrant it. Western Union Tel. Co. v. Shepard (169 N. Y. 170) did decide that a trust not dependent upon the will of the parties need not be created by . express language nor be one of the four express trusts permitted by statute,