Lounsbury vs. Purdy, 16 Barb. 376

By the Court, S. B. Strong, J.

The evidence adduced on the trial of this cause proves clearly that the allegations in the answer, that the defendant bought the property described in the complaint for his own use and benefit, and not as trustee for the plaintiff, or in any other character for her; that he afterwards sold such property to Quereau, without any thing being said at any time about its being in trust, in any way, for the plaintiff; that a deed was given to Quereau for his use and benefit, and not as trustee and for the benefit of the plaintiff; and that the place purchased was not wholly paid for with her own individual moneys, were palpably false, and known by the defendant to be so, at the time when they were made, and verified by the oath of his attorney.

It is quite apparent, too, that in the acquisition and conveyance of the property the defendant acted as the confidential friend and adviser of the plaintiff, and that if the transaction is unavailable to her, it is through a mistake perpetrated by him or with his knowledge and consent.

For these reasons, if we had been compelled by some rigid rule of law to have allowed him to take advantage of his own error, committed under trust, we should have denied him his costs; and if it had-been in our power, I should have been strongly inclined to compel him to pay the costs incurred by the plaintiff in trying the false issues raised by him. But however much we may disapprove of the conduct of the defendant as reflected by the evidence, if the transaction involved in this controversy cannot be sustained for the plaintiff’s benefit, as it was originally designed, we are bound so to decide.

There is no power in us to alter a rule established. In this case there can be no doubt but that whilst the grant was made to one person, the consideration therefor was paid by another. The defendant objects that but a part of the purchase money was paid when the deed was executed, and that if there could have been a resulting trust in favor of the plaintiff, it would have been only pro tanto. But a note was given for the residue at the same time, in her behalf, by her then friends, and it is apparent that it was the understanding at the time, that it was to be paid, as it was paid, with her money.

That, in reference to the principle in question, was equivalent to the actual payment of the money at the time when the conveyance was made. It is not necessary that the consideration should be paid in specie, but any thing representing it, coming from, or in behalf of, the cestui que trust, will be equally available to protect the beneficial interest. The cases which declare the unavailability of subsequent payments, have reference to such as are made pursuant to arrangements concocted after the conveyance had been made and consummated. The provisions of the 51st

section in the

article of the revised statutes vest the title in the alienee, although the consideration may have been paid by another, unless, as provided in the 53d

section of the same article, such alienee shall have taken the deed as an absolute conveyanee, without the consent or knowledge of the person paying the consideration; or unless the purchase shall have been made with another’s money, in violation of some trust. The plaintiff in this case contends that the deed was taken as an absolute conveyance, without her consent or knowledge; and that therefore the transaction is' not within the prohibition contained in the 51st section, to which I have alluded.

The defendant answers that this is not averred in the complaint; and that if it had been, the proof adduced would have established the contrary. It is true that the complaint does not in totidem verbis aver the want of such consent or knowledge, but it contains statements which, if true, show the absence of both, and that is all that is necessary. The defendant was informed that the plaintiff claimed an interest in the property, and the facts to establish it were fully set forth; and the reasons upon which the rules of pleading were founded previously to the enactment of our new code, required nothing more.

The complaint alleges, that the plaintiff proposed-to the defendant to take to himself the legal title of the property, in trust for her, and to hold the same for her benefit; that he thereupon made an agreement with the vendor, for the property, and that afterwards the defendant advised Quereau, the plaintiff’s brother, to take a deed in his name, in trust for her, and for her use, to which it is fairly inferrible she assented; and that although it does not appear upon the face of the deed but that the land was conveyed to Quereau in his own right, yet in fact the same was conveyed to him as trustee for the plaintiff.

Certainly these allegations in effect negative any consent or knowledge of the plaintiff that the deed should be an absolute conveyance to Quereau. By an absolute conveyance the statute undoubtedly means a transfer of the entire interest, legal and equitable. Surely the plaintiff could never have designed such a transaction, if the allegations in her complaint are true. She intended to have the entire beneficiary interest secured to herself, and that intention was inconsistent with an absolute conveyance to another.

Although a deed to Quereau of property in trust for the plaintiff, in general terms, might not have vested any title in him, yet she must be considered as having reference, in her instructions to the defendant, to a conveyance which would in fact secure the conveyance of the property to her, rather than to one which should transfer it absolutely and beyond her control, to another.

But the property might have been conveyed to Quereau in trust to receive the rents and profits and apply them to her use during her life, and at her decease to convey the same as she might direct, or to her heirs. [Kings General Term, October 3, 1853. Barculo, Brown and S. B. Strong, Justices.] It was undoubtedly competent for the plaintiff to adduce parol evidence to prove such a resulting trust as is not invalidated by the revised statutes. (Boyd v. McLean, 1 John. Ch.

Rep. 582, and the cases there cited.) A daughter of the vendor of the property testified that the defendant, when he made the purchase, said that it was for the plaintiff; that she had about one thousand dollars that was left to her by some of her friends, and she wished to lay it out in property. And Quereau swore that the defendant told him that the plaintiff wanted him to take the deed in bis own name, for her. Certainly these wishes of the plaintiff did not indicate an absolute conveyance to Quereau, but the contrary.

There is no evidence that the plaintiff ever saw the deed, or heard any thing about its terms until after it had been recorded. The evidence then shows that the plaintiff’s wish, as communicated to the defendant, was that the property should he purchased and a conveyance taken (in her brother’s" name) for her, but that the conveyance was to her brother in absolute terms, and there is nothing from which an inference can be drawn that she ever saw it, or knew in what terms it was couched, until after the purchase had been consummated.

Under these circumstances we are well warranted in coming to the conclusion that the conveyance was absolute without her knowledge or consent; especially when taking into consideration the fact she is and was at the time a married woman; and that the law justly requires strong evidence to prove a consent by a married woman which would go to divest her of her property. (Clancy's Rights of Married Women, 535, 6, 7.) I think that the decree made at the special term is right, and that it should be affirmed with costs.