Gomez v. Tradesmen's Bank — 6 N.Y. Super. Ct. 102

Majority

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Gomez v. The Tradesmen’s Bank.

Headnote

A conveyance, absolute on its face, was executed to four persons as joint tenants, and at the same time a bond was executed by the grantees, which contained the following clause: “And whereas the aforesaid consideration money being a voluntary offering made by them, the said L., &a., [the grantees,] which they appropriated to purchase the above piece of land for a burying-place for the Jewish nation in general, which title being in their names in trust.” And the bond was upon the condition that the grantees in the deed, or their heirs, should not sell, or in any way incumber the premises conveyed, or any part or parcel thereof, but that the same should for ever thereafter remain for a burying-place for the Jewish nation in general, and to no other use whatsoever. Held, 1. That the recital proved that the money paid for the land had been given by the grantees to the Jewish nation, and was paid as their money to the grantor, and hence that there was a resulting trust in their favor.

Held further, that the instrument itself was a valid declaration of trust, and that the property vested in the grantees as a trust estate; and consequently was not subject to a claim of dower.

Held also, that if the instrument could only be regarded as a bond, equity would enforce it as a declaration of trust.

No particular form is requisite to create or declare a trust.

(Before Oakley, Oh. J., and Sandfoud and Paine, J. J.)

March 17;

July 6, 1850.

This was an action of ejectment, brought to recover the possession of one undivided third part of certain premises on the southerly side of Chatham-square, in the Fourth Ward of the city of New York, known as No. 177 Chatham-street, and which the plaintiff claimed as dower in the estate of her husband Isaac Gomez, Junior, deceased.

Upon the trial of the cause, in December, 1848, after proving that the plaintiff was the wife of Isaac Gomez, Junior, and that her husband had died in the year 1881, the plaintiff’s counsel read in evidence a deed from Noy Willey, of London, to Lewis Gomez and his three sons, Mordecai, Daniel, and David, as joint tenants of certain lands, including the premises in question, which deed was executed on the 17th December, 1729. It was admitted by the defendant’s counsel, that the premises described

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in the declaration, were parcel of certain lands formerly known as the Jews’ burying ground,- and were embraced in the deed of Noy Willey, • The plaintiff’s counsel then read a notarial certificate of letters patent from George L, king of Great Britain, granting to Lewis Gomez and his three sons, the right to hold and- convey any real estate, in any part of the realm or its dependencies.:

Mordecai Erois, a son-in-law of the plaintiff, was then called as a witness, and produced a bible in the Spanish language, bearing the imprint of 1660. It appeared by the testimony of this witness, that this bible had belonged to the family of Gomez, •and for a long period of time had been spoken of and regarded as a family relic or heirloom. It contained many entries-of births, .marriages, and deaths in the family, .and also of remarkable events which had occurred-in-the 17th century. -

Various entries were then read- from the book by the witness, subject to objection on- the part of the defendant’s counsel. The first entry was of the .death, in 1740, of Lewis Gomez. • There was an entry-also-of tjje death, in-T750, of his son Mordecai Gomez'; in 1769, of David Gomez; in 1780, of Daniel; and in 1789, of Moses, a son of-Daniel Gomez. It also appeared that Isaac Gomez, Junior, was one of the sons of this Moses-Gomez, and that he was the only descendant of Moses'Gomez, who had issue, or'who survived him. ■ The witness -testified to the handwriting of a part only of the entries, as of his own knowledge. He stated that the other entries were in the book in 1816, when he became a member of the family. It also appeared -by the testimony of Moses E. Gomez, a son of the plaintiff, 'over 40 years of age, that this bible had been, in the family from ■ his earliest recollection, and that it contained the -genealogy of the family, from Isaac Gomez of Spain. • .

The plaintiff’s counsel next read in evidence a deed of release and quit-claim from Isaac Gomez, Junior, to the congregation of “Shearith Israel,” dated April 14th, 1828,- conveying the-premises described in the deed of Noy Willey..- The plaintiff- was not a party to this deed. ■ • •

The plaintiff here rested, and the counsel for. the-defendants..

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moved for a nonsuit, on tbe ground that there was no actual seisin shown on the part of the original grantees of Noy Willey, or of those claiming under him, nor any legal seisin of Isaac Gomez, Junior, in fact or actual seisin shown; which motion the presiding justice decided must prevail, unless further evidence was.offered. The counsel for the plaintiff thereupon called upon the counsel for defendants to produce a paper in their possession, which was produced by them and read in evidence by the plaintiff as follows:

“ Know all men by these presents, that we Lewis Gomez, Mordecay Gomez, Daniel Gomez, .and David Gomez, all of thecity of New York, merchants, are held and firmly bound unto Abraham Isaacs, Jacob Eranks, and Nathan Levy, of the same place, merchants, in the sum of one thousand pounds current lawful money of the province of New York, to 'be paid unto the said Abraham Isaacs, Jacob Franks, or Nathan Levy, their certain attorneys, executors, administrators or assigns, to the which payment well and truly to be made and done, we do bind ourselves, our heirs, executors and administrators, and every of them, firmly by these presents. Sealed with our seals. Dated this twenty-fourth day of November, 1780.

. “ The condition of this obligation is such that whereas Richard Davis, attorney of Noy Willey, of the city' of London, by a certain deed under his hand and seal, bearing date seventeenth of December last past, for the consideration of thirty pounds, current money of New York, did sell and convey unto the above bounden Lewis, Mordecay, Daniel and David Gomez, a certain lot of land situate and being in the city of New York, aforesaid, on the south side of fresh water, beginning at the south-east corner of the Jews’ burying-place, running three hundred and ninety foot north 17 degrees westerly to the highway, thence along the highway north 69 degrees east fifty-one foot and three quarters, thence south. 17 degrees 67 foot, thence south 69 degrees west'fifty-six foot to the place where it first began. And whereas the aforesaid consideration money being a voluntary offer made by them the, said Lewis, Mordecay,. Daniel and David Gomez,

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•which, they appropriated to purchase the above said piece of land for a burying-place for the .use of the Jewish nation in general, which title being in their names in trust.

“ Now if therefore, the above bounden Lewis, Mordecay, Daniel and David Gomez, or their heirs, shall not sell or any ways incumber the aforesaid lot of land, or any part or parcel thereof, but that the same shall for ever hereafter remain for a burying place for the Jewish nation, as aforesaid, in general, and to no other use whatsoever, then this obligation to be void and of none effect, otherwise to remain in full power, force and virtue.

“ Signed, sealed and deliv-I Luis Gomez, [L.S.] ered in the presence of us, [ Mordy. Gomez, [L.S.] Baruck Judah, ) Daniell Gomez, -[L.S.] Zachary Polock. ) David Gomez, [L.S.]”

It appeared by the testimony of Mordecai Erois, that the premises in question had been formerly used as a burying-ground for the Jews, but within the last fifteen years had been parcelled out and sold, and that a portion was now in the occupancy of the defendants.

The plaintiff again rested, and the motion for a nonsuit was renewed by the defendants’ counsel, upon the same grounds as before, and also because the instrument produced on the part of the plaintiffj created an estate in trust in the original grantees of the premises, and that therefore the plaintiff was not entitled to dower .therein.

The motion for a nonsuit was denied.

The defendants’ counsel thereupon read in evidence, the certificate of incorporation of the congregation of “ Shearith Israel,” under the act of 1784. Also an order of the court of chancery, made March 81st, 1823, directing a sale and conveyance of the premises in question to the defendants, and a deed of the premises by the trustees of the congregation, “ Shearith Israel,” to the defendants, dated April 30, 1823.

It appeared by the testimony of the defendants’ witnesses that the premises in question had been occupied by the congre•gation of “ Shearith Israel,” from the time of their incorporation

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in 1784, as a burying-ground, until tbe conveyance to the defendants. A portion of the premises now occupied by the defendants was used as an entrance to this burying-ground. The congregation, during this period, exercised control over the property, mortgaging and leasing it, and receiving the rents and making improvements upon it, and that during this time no claim was made by any other person to the property. It was admitted by the plaintiff, that the defendants were created a body politic and corporate in March, 1828, and that the common council of the city of New York, in the same year, passed=an ordinance prohibiting burials south of Broome-street in the city, pursuant to an act of the legislature.

The case here closed, and the court directed a verdict for the plaintiff, for an undivided third of the premises in question, subject to the opinion of the court.

John Graham and Geo. Wood, for the plaintiff.

P. A. Gowdrey and John Slosson, for the defendants.

We think that the decision of this case may and should depend entirely upon the construction and effect to be given to the sealed instrument dated November 24th, 1730, and executed.by the grantees in the deed from Noy Willey.

One of these grantees was .the ancestor of the plaintiff’s husband, by virtue of whose seisin she claims dower in a part of the premises conveyed by the deed. And the first question upon which her right to dower depends is, whether the deed from Willey was an absolute or a trust deed.

The deed on its face is absolute, and furnishes no evidence of being a trust deed. But the defendants insist that the instrument of the 24th of November, executed by the grantees, .was a declaration of trust, or shows the deed to have been a trust deed.

The clause of that instrument upon which the defendants rely is in the following words: “And whereas the aforesaid

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consideration money being a voluntary offer made by them the said Lewis, Mordecai, Daniel and David Gomez, which they appropriated to purchase the above said piece of land for a burying-place for the Jewish nation • in general, which title being in their names in trust.” Excepting this clause, the whole instrument consists of the ordinary penalty and condition of a bond.

The clause above quoted seems to have been as studiously and carefully drawn, as it was singularly inserted in the bond; and the whole instrument may be regarded as framed with abundant caution, and with the unquestionable intent, on all hands, to secure the property conveyed by the deed to the Jewish nation as a perpetual burial-place. This is, perhaps, more evident than the reasons which induced the parties to give the instrument the shape it bears.

From the view which we take of it, however, no instrument, however regularly drawn, could have furnished better legal reasons for holding the deed from Willey to the Gomezes to be a trust deed.

In the first place, the consideration of the deed is evidently referred to, to show that the property conveyed by the deed was in trust, and in reality not the property of the grantees. This could be done by showing that the consideration paid for the land did not in truth belong to the grantees at the time they paid it. And even if this had not been the evident intent in using the language about the consideration, we do not see what other meaning the language will admit of. It is not the land, after it was purchased, which was voluntarily offered or given by the grantees to the Jewish nation, but it is the consideration money paid for the land. The consideration money, before it was paid, was voluntarily given to some one. A voluntary offering is a gift. To whom then was it given? Not to Noy Willey, for it was paid to him as the price of the land. It could then have only been given to the Jewish nation. It became theirs before the land was purchased, and the land was purchased with their money. This is the version of the transaction by the Gomezes, confirmed by their seal, and which they themselves

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could not have questioned. We must' now allow it- the same effect, as if it had been proved that the Gomezes delivered the money to the Jewish nation as a gift with every requisite formality, and that the Jewish nation themselves afterwards paid Willey *the money for the land.

This part of the clause was probably inserted to show that in equity there was a trust by implication, and to avoid the difficulty, that the land, having been purchased with the grantees’ money, must be held to enure to, their use.

We think that without any thing further there would have been a good resulting trust; but the instrument proceeds expressly to declare that the title to the land was placed in the grantees’ names in trust.

Is this a valid declaration of trust?

In Bellamy v. Barrow, (Cas. Temp. Talb. 97,) a brief note or memorandum, containing almost the same words as were used in this instrument, was held to be a good declaration of trust, and the only doubt was, from an apparent ambiguity in the words, which does not exist in this case.

In Deg v. Deg, (2 P. Will. 412,) a person’s mere admission by deed that he had received money of another to be laid out in land, and that he had so laid it out, was held to be a declaration of trust. The same was held in Hampton v. Spencer, (2 Vern. 288,) upon a similar admission by the defendant in his answer. So in Crooke v. Brookeing, (2 Vern. 106,) a description of the trust in a letter from the trustee was held a sufficient declaration.

Indeed, it is unnecessary to cite authorities to this point. It is well established that no form is requisite to create or declare a trust.

But it is strongly urged for the plaintiff, that this instrument is only a bond or personal covenant not affecting the land.

As we have already shown, we view it differently. It is much more than a bond, for it contains a declaration of trust studiously inserted in it. If it were intended only ás a bond, .that part of the recital above quoted would be superfluous. The preceding part of the recital is pertinent to the purpose of a bond; but-this part is, to say the least, wholly unnecessary.

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Besides, if tbe declaration is in itself sufficient, bow should it impair its validity, that it., is placed in a bond or personal covenant ?

But if tbis instrument could be regarded only as a bond, equity would enforce it as a declaration of trust.

In Moorecroft v. Dowling, (2 P. Will. 314,) a penal bond was given, conditioned to surrender a copybold to uses. After a judgment bad been recovered against tbe obligor for tbe penalty, a bill was filed to compel him also to surrender to tbe uses. It was not contended that the bill would not lie, but only that both remedies could not be had upon tbe bond. Tbe court acquiesced in tbis view, and decreed that tbe obligor should perform tbe trust upon receiving back tbe money which bad been' recovered of him.

Tbe view which we have taken of tbis case renders it unne-' cessary that we should decide upon other points presented on tbe argument; but we think that tbe grounds of presumption of a grant, want of actual seisin in the husband, and adverse possession, are serious obstacles in tbe way of a recovery.

Tbe estate in question being a trust estate, tbe plaintiff cannot be entitled to dower, and judgment must be entered for tbe, defendants.