Foote v. Colvin

3 Johns. 216

• Court: New York Supreme Court
• Decided: May 15, 1808
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. On the motion for a new trial the defendants’ counsel have insisted,

1. That the plaintiffs did not prove a joint property in the rye, which was the subject of the suit.

2. That the parol evidence offered and overruled, ought to have been admitted, to show that James Litchfield furnished to Foote the purchase money, with which the locus in quo was bought; as it created a resulting trust for James Litchfield.

3. That such resulting trust estate was liable to be sold an the execution issued at the suit of Hunt, and being sold to Colvin, he thereby acquired the legal interest in the land, and in the growing crop.

4. That the evidence thus offered and overruled was proper under the general issue.

On the first point, I am inclined to think that the plaintiffs had a joint property in the growing crop. Assuming for the present that Foote was the legal owner of the land, E. Litchfield sowed on shares, and on reaping the crop, they were to have it in certain proportions. This case differs from that of Newcomb and others v. Ramer, (2 Johnson, 421. in the notes) in this, that the rent was of no proportion of the crop, but vims specific as to the amount. This opinion is supported by the case of Hare and others v. Celey, (Cro. Eliz. 143.) and seems best to promote the intentions of landlord and tenant. If the portion reserved for the landlord was to be considered as rent, and in which he had no interest until severance and delivery, it would put it in the power of tenants clandestinely to alienate the produce of the land, to the injury of the person who had enabled them to raise the crop. 1

The second point has been virtually decided in the case of Jackson, ex dem. Kane v. Sternbergh.

* In that case Kane had obtained a judgment against Sternbergh, and his lands were sold on an execution to Cox, at the instance of the plaintiff. The sheriff gave a deed to Cox, and he conveyed to the plaintiff. It was decided, that the lessor of the plaintiff was the real purchaser, by Cox, his agent, and that his purchase was a resulting trust, which might be proved by parol. It seems to be perfectly well settled, that if A. buys land, and takes a conveyance in the name of B. it is a resulting trust for him who pays the purchase money, raised by implication of law, and, therefore, saved by the statute. There is a diversity of opinion, whether, notwithstanding such trusts are not affected by the statute, there should not be a declaration in writing, or an acknowledgment in the deed from whom the consideration moved. In the case of Ambrose v. Ambrose, † * the Lord Chancellor is reported to have said, that “it plainly appearing upon the evidence on both sides, that the consideration money of this purchase was the proper money Qf yj, had it not been for the statute of frauds, this would have made a resulting trust.” However great the authority of Lord Harchvicke deservedly is, he is opposed by .various decisions, and the opinions of elementary writers. The cases in 2 Vent. 361. and 1 Vern. 367.* consider such trusts as saved by the statute without any deed declaring .them, it being required that the proof should .be clear, that the purchase money was really the "property, of him who claims the estate. To the same effect are 3 Woodeson, 439. and 21 Vin. 497. in the notes. In the present case .the evidence offered and overruled, would, we are .to .presunae at .present, have established the fact, that the farm was .purchased with James Litchfield's money, and •that Josiah Q. Foote .was the mere pipe of conveyance. This prqof would consequently have shown an estate iii James .Litchfield, liable to be .sold on execution,, under .the 4th section of the act .concerning uses.† Indeed, (without the aid of that statute, I consider James Litchfield., if he advanced the purchase money, as having an interest.liable to be'sold on execution. This evidence, then, was improperly overruled.

There may be an interest in growing crops in one man, whilst the title to the land is in another. The one does not necessarily follow the other; but when the right to any portion of the crop exists in the owner of the soil, there, unless , in certain excepted cases, the ownership of the land draws after it that of the crops, and it cannot admit of a doubt, that a sale of the land simply, by the owner both of. the land and crop, carries the property of the crop to. the purchaser. If a voluntary sale would do this, a sale under an execution will produce the same consequences. It follows, then, that Foote, being a trustee for James Litchfield, and it being a resulting trust susceptible of parol proof, .and . the interest of Litchfield being vendible .under execution, Colvin, as a purchaser on the sheriff’s sale, .acquired all Foote’s right, both to the land and the crop. Foote then ceased to have any interest, and. in this point,.of view the^ proof would have shown that the plaintiffs had not a joint interest in the rye.

This was proper evidence under the general issue, it being a settled and established principle, that any thing may be given in evidence that amounts to a denial of the right, (and particularly of a freehold in the defendant) to the locus in quo. (7 Term, 355. 8 Term, 405. 1 Ld. Raym. 732. 1 Leon. 301. Gilb. Ev. 258.)

The court are of opinion, that a new trial ought to be granted, with costs to abide the event of the suit.

New trial granted.

1 Johnson, 45. in note.

1 P. Wms. 323.

Gascoigne v. Timing.

Rem. Laws. vol. 1. p. 68. sec. 4.