Morgan v. Turner

The plaintiff brings this action to establish title to an undivided one-half interest in lot No. 63, township 4,. Old Military Tract, in Clinton county. The lot was sold for taxes-in 1853, and conveyed by the comptroller to the people. On the-13th of April, 1882, the people, for the consideration of $801, conveyed the premises to one Wales Parsons. The evidence shows that the plaintiff paid the full purchase price for this deed. Before the execution of the deed, and while negotiations for the purchase were pending, Parsons gave to- the plaintiff a mortgage for $400, as the-plaintiff claims, to- secure one-half of the purchase price owing by Parsons. There appears upon the Parsons deed a memorandums signed by him by his initials, as follows: “Undivided one-half deed- • ed Bichard Morgan,” this plaintiff. The plaintiff and Parsons owned', some real property together, and did business as partners in some-matters. On September 22, 1892, Parsons wrote a letter to the-plaintiff in w’hich he stated that he thought they could sell the lot for $4,000, and if the plaintiff would sell at that figure they would give an-option for a short time, and requesting that plaintiff reply at once. Parsons is dead, and his widow testified that she had heard, her husband and the plaintiff talking about the lot in question,, but could not recollect the conversation. Plaintiff for some years-paid one-half the taxes on the lot. This is all the evidence that plaintiff produces showing how Parsons held the property, or what interest the plaintiff had in it. The complaint alleges that on the-completion of the transfer in April, 1882, the agreement between.: the plaintiff and Parsons was that Parsons should deed an undivided one-half interest to the plaintiff, and that Parsons failed to do so.,, and that Parsons and plaintiff were co-partners.

The first questions are: Did any trust arise from this transaction*

The statute in force at the time of the transaction provided that no trust should arise in favor of the plaintiff by reason of his having paid the consideration for the deed, unless the title had been taken without his consent in the name of another, or funds had been used for the purchase of the property in violation of a trust. 4 Eev. St. (8th Ed.) p. 2437, §§ 51-53 (2 Eev. St. marg. p. 728). The purchase was made in the name of Parsons, with the knowledge of the plaintiff, who now insists, however, that there was sufficient done by Parsons to raise in his behalf an express trust to one-half the" lot, notwithstanding the provision of section 6 of the statute of frauds that a deed or conveyance in writing, subscribed by the party creating the trust, is a necessity. The provisions of section 7 of that statute allow the trust to be proved by any writing subscribed by the party declaring the same. 4 Eev. St. (8th Ed.) p. 2589 (2 Eev. St. marg. p. 134). But this evidence must be wholly in writing, and sufficient to show that there is a trust, and what it is. Cook v. Barr, 44 N. Y. 156 ; Hutchins v. Van Vechten, 140 N. Y. 115 , 35 N. E. 446 . In the latter case the court says:

“A trust cannot be impressed upon what appears by the deed alone to be an absolute title in the defendant, without clear proof showing a beneficial interest in another as well as its nature, character, and extent, and that a failure to execute or deliver the necessary legal evidence to qualify the title is fatal to such a claim.”

Is there such clear proof in writing in this case as the law demands of the nature, character, and extent of the trust interest claimed by the plaintiff to have been held by Parsons for his benefit? The case of "Hutchins v. Van Vechten, supra, discusses the growth of the provision of the statute of frauds relating to the declaration of trusts, and concludes that the written evidence in that case was sufficient to establish a trust, notwithstanding the lack of a conveyance in writing, subscribed by the party declaring the same, and bases its conclusion upon the amendment to the former provision of the law enacted by chapter 322 of the Laws of 1860. That law, allowing a trust to be declared without formal conveyance, provides that the preceding sections shall not be construed to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same. Of course, in this case no trust resulted by operation of law. On the contrary, the law specifically prohibited a trust arising from the payment of the purchase price. But that prohibition does not prevent the plaintiff from establishing a trust in Parsons to one-half the lot, if he can do so by any writing subscribed by Parsons declaring the same. In Hutchins v. Van Vechten, supra, the court held that letters and informal memoranda signed by the party were sufficient if they contained enough to show the nature and character and extent of the trust interest. In that case the party holding the title had executed a power of attorney to the law partner of the one claiming a

“I think we can sell the Saranac Pulp & Paper Company lot 63, township 4, O. M. T. I have agreed to go in and show them the same next Tuesday. I told them the price wanted was $4,600 for the whole lot; if you will sell at that rate, that we would give them an option for a short time,—say thirty days. Please let me hear from you at once, and oblige.”

Parsons had evidently told the probable purchaser that he owned only a part of the lot, and must consult the plaintiff with respect to the sale of the whole lot. He refers to the selling in the plural, and says that he told them that the price wanted for the whole lot was $4,000, and that, if the plaintiff would sell at that rate, they would give them an option. The declaration on the deed can be fairly interpreted as a statement, in the absence of any deed, that the plaintiff was entitled to a deed for an undivided one-half of the premises. Do the letter and the declaration on the deed, taken together, constitute enough written evidence subscribed by Parsons to show that he held an undivided half of lot 63 in trust for the plaintiff? Under the authority of Hutchins v. Van Vechten, I think they do, and that the plaintiff has established that, as between him and Parsons, Parsons held an undivided half of the lot in trust for him. If there was any trust at all, it was an express one, subsisting at the time of the writing of the letter in 1892, or created at that time, and the statute of limitations did not begin to run against the plaintiff until the trustee disclaimed or repudiated the trust. Lammer v. Stoddard, 103 N. Y. 673 , 9 N. E. 328 . If I am right in my conclusion that there was a trust evidenced by the letter of September 22, 1892, certainly at that time he had not repudiated it; and the 10-year statute, being the only one that applied, even if it began in 1892, had not .run at the time of the beginning of this action.

The defendant Turner insists that the people had no title to convey to Parsons, because the taxes of 1847 and 1848, for which the sale of 1853 was made, were improperly assessed as nonresident; the then owner being a resident of the town of Saranac, where the property was situated. The lands were wild lands, not occupied by the owner, and the assessors of the town of Saranac had jurisdiction, in some manner, to assess the land. The defendant says he is not prevented by the statute from attacking the sale, because the deed from the comptroller to the peoplé was never recorded in Clinton county, which is a prerequisite to set in motion the limiting acts of 1885 (chapter 448), 1891 (chapter 217), and 1893 (chapter 711). As

The further point is made that the lands in question are within 20 miles of Clinton prison, and that the letters patent issued to Parsons are void because a sale of lands within that radius of the prison is prohibited by law. The situation of the land with respect to the prison required evidence outside the patent, which was valid upon its face; and the rule is that the invalidity of a patent cannot be established in this manner or in a collateral proceeding, but can be voided only in a direct proceeding or action for that purpose. Blakslee Mfg. Co. v. Blakslee’s Sons’ Iron Works, 129 N. Y. 155 , 29 N. E. 2 ; Railroad Co. v. Aldridge, 135 N. Y. 92 , 32 N. E. 50 , 17 L. R, A. 516 . Prior to Parsons’ death, in 1895, judgments were obtained against him, and an execution issued, and the land in question was sold. The defendants redeemed from that sale, and claimed to have acquired title to the entire lot by virtue of that redemption and conveyance from the purchaser at the sheriff’s sale. The answers of the defendants do not allege the acquiring of title in this manner by them, nor do either of them aver that the purchaser at

If I am right in my conclusions, the plaintiff is entitled to the decree asked for in the complaint, with costs. A decision and judgment may be submitted accordingly.

Judgment for plaintiff, with costs.