Jackson ex dem. Benson v. Matsdorf

Thompson, Ch. J.

delivered the opinion of the court. It is a well settled ru]^ of law, that if A. buys land and takes a conveyance in the name of B., it is a resulting trust for him who paid the purchase-mopey, raised by implication of law, and, therefore, not within the statute of frauds. The defendants in this case claim under Ambrose Benson, who, it is admitted, paid the consideration money; but the deed of the 9th of June, 1766, was taken in the name of his daughter Keziak, under whom the lessor of the plaintiff claims, by deed, dated November 3, 1786.

It is a question which has often been agitated in chancery, whether, when a parent purchases land in the name of his child, it shall be deemed a trust for the father, or an advancement for the child. When the child is under age, it has generally beep considered an advancement; though Lord Hardwicke, in the ease of Stileman v. Ashdown, (2 Atk. 479.) said he thought the cases on that subject had gone full far enough. But no case will be found, where a purchase so made has been held an advancement, when it expressly appears to have been the intention of the parent that it should not be considered as such, as it does in the case before us. It is in proof, derived from the confessions of the lessor himself, who was the grantor, that the deed was given to the daughter for the purpose of avoiding some expected difficulties, and with an understanding that when Ambrose Benson should get rid of those difficulties, the deed was to be taken up and another given to Ambrose himself. This, doubtless, was the reason why the deed remained in the possession, or under the control, of Ambrose, until fraudulently taken away by Keziak and others. No objection was made to this evidence, nor indeed could any be made; for it not only appears on the face of the deed to be a resulting trust, but such a trust, not being within the statute of frauds, may be proved by parol evidence. This was considered as a settled rule of law in the cases *97 of Jackson v. Steenbergh, (1 Johns. Cases, 153.) and Foote v. Colvin, (3 Johns. Rep. 216.)

If this is not to be considered an advancement to the daughter, as we think it clearly cannot, then there was ño trust completed, by a delivery of the deed to the trustee. Ambrose Benson being the person beneficially interested, and retaining the deed in his own possession, no interest vested in the trustee. Had the deed been intended as an advancement, possibly the delivery to Ambrose might have been considered as accruing to the benefit of his daughter. And in this view of the case, the title of Ambrose was complete by length of possession.

But admitting a delivery of the deed, the interest created thereby was a resulting trust for Ambrose Benson, who paid the consideration money; and if the legal estate was, by that deed, vested in his daughter Keziah, the lessor of the plaintiff cannot avail himself of his purchase from her and her husband, in the year 1786, since he purchased with full notice of the trust, and was, therefore, guilty of fraud, although he might have paid a valuable consideration. (1 Cruise's Dig. 485. Fonb. Eq. b. 2. c. 6. s. 2. and note.) If that deed was not absolutely void, yet the lessor of the plaintiff would be considered a trustee for Ambrose Benson, who was the real owner; and, if necessary, the lapse of time is amply sufficient to warrant the presumption of an execution of the trust, by a release to Ambrose, the ccstuy que trust. Besides, it appears from the confessions of the lessor, that upon discovering that the deed of 1766, given by him to Keziah, had been surreptitiously taken away, he gave another deed to Ambrose Benson himself, which deed, if it contained a warranty, Would pass any title subsequently acquired by the grantor. (Co. Litt. 265. a.)

There is another and conclusive objection to the plaintiff’s right to recover in this action, which is the adverse possession of Ambrose Benson, at the time the deed was given by More-house and his wife, in 1786, to the lessor of the plaintiff, (a) It is unnecessary to recapitulate the testimony on this point. An examination of it will abundantly show that Ambrose Benson, from the year 1766 until the time of his death, which was about ten or twelve years ago, continued in possession of the premises *98 in question, using and improving them as his own, and in hostility to any right or claim that might be set up under the deed to Keziah. The circumstances stated by some of the witnesses, that he sometimes called the farm Morehouse’s and Keziah’s, is entitled to but little weight, in opposition to the mass of evidence showing that he held it in defiance of that title. In whatever point of view, therefore, this case is considered, there must be judgment for the defendants.

Judgment for the defendants, Wickham v. Conklin, (8 Johns. Rep. 220.) Whitaker v. Cone, (2 Johns. Cases, 58. Woodworth v. Janes, (2 Johns. Cases, 4l.) 2 Caines' Rep. 147.