Reid v. Fitch , 11 Barb. 399 ( 1851 )

By the Court,

Willard, P. J.

At the time the revised statutes were adopted, it was well settled that where land was purchased in the name of one person and the consideration was advanced by another, a trust resulted in favor of the person who advanced the consideration. (Jackson v. Morse, 16 John. 197. Foote v. Colvin, 3 Id. 216. Jackson v. Sternbergh, 1 John. Cas. 153. Botsford v. Burr, 2 John. Ch. 409. 3 Story’s Eq. § 1201. Cruise’s Dig. tit. 12, ch. 1, § 42, of Trusts.) For reasons unnecessary to be mentioned here, this rule was abrogated, except in favor of the creditors of the party advancing the consideration, to the extent that might be necessary to satisfy their demands. (1 R. S. 728, §§ 51, 52.) And except by the 53d section, “ when the alienee named in the conveyance, shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration, or when such alienee, in violation of some trust, shall have purchased the lands so conveyed, with moneys belonging to another person.” The latter clause in terms covers the present case. Thomas Reid, the alienee, made the purchase and took the deed to himself, in violation of his trust, and he paid the consideration with money belonging to the lunatic, Catherine Reid. This resulting trust in favor of the lunatic is expressly retained by the revised statutes. The eases before cited show that such resulting trust might be proved by parol. But in the present case, it was not necessary to rely upon that principle. The report afterwards made by him to the court of chancery, in writing, and subscribed by him and verified by his oath, distinctly recognized and declared the trust. Such declaration is equally efficacious, as if made at the time. (Per Sutherland, J. in Jackson v. Moore, 6 Cowen, 725, 6. 5 John. Ch. 12.) The 45th section of the same article, (1 R. S. 727,) abolished uses and trusts, except as authorized and modified therein; and enacted that every estate and interest in lands shall be deemed a legal right cognizable as such in the courts of law, except when otherwise provided in that chapter. The learned judge was right in holding that on the purchase of the premises in question by Thomas Reid in his own name with the moneys belonging to Catherine Reid, a trust resulted in her favor which the statute turned into a legal estate, and that on her death it descended to her heirs at law.

[Essex General Term, July 7, 1851.

Willard, Hand and Cady, Justices],

I am aware that the chancellor intimated in Brewster v. Power, (10 Paige, 562,) that the land in which there is a resulting trust in favor of creditors can not be sold on an execution in favor of the creditors. But the case did not call for a decision of the question; and the contrary was expressly held by the supreme court in Wait v. Wait, (4 Denio, 439.) If the estate be a legal- estate, by operation of the statute, it is subject to all the incidents of such estate. Before the revised statutes, such estate could be sold on execution against the cestui que trust. (Foote v. Colvin, 3 John. 216.) If it was a legal estate for that purpose, it must have a descendible quality, and must be recognized as a legal estate in a court of law.

The defendants are not protected by the 54th section, for they purchased with full notice of the trust, and without parting with any new consideration.

The learned judge did not decide that an equitable defense could be made to a legal demand, and that question does not properly arise in this case. It is manifest that the proper parties are not before the court to take an account between the heirs of Catherine Reid the lunatic and Thomas Reid the committee. The defendants did not ask leave to amend the pleadings in this action, nor that the case should stand over to add parties. It is therefore unnecessary to say whether the pleadings in this cause could have been so moulded as to take the desired account. Nor was there any question on which the defendant asked to go to the jury; nor was the judge asked to dismiss the action as to one or more of the defendants. The •intimation that an account should be taken in a cross-action, in which all persons interested should be made parties, was a proper suggestion, and is hardly the subject of an exception.

On the whole I am satisfied that the cause was properly disposed of at the circuit.

Judgment affirmed.