Niver v. . Crane

Danfobth, J. We are referred to no principle of equity upon which the relief sought by the plaintiff can, under the circum.stances of this case, be given. A judgment creditor’s action, whether instituted under the provision of the Revised Statutes (Vol. 2, tit. 2, part 3, chap. 1, art. 2) or the Code of Civil Procedure (Tit. 4, art. 1, chap. 15), can reach only property belonging to, or things in action due to, the judgment debtor,"or held in trust for him. If either statute goes further. Here the sole fact on which the plaintiff relies is the alleged payment of consideration by his debtor for property conveyed at his instance to the other defendant. But as between the two, that circumstance is immaterial. The property is, as against him, the wife’s own, absolute property, whether he paid for it, or whether, as she asserts, the payment was made from her own estate. The debtor never had the title, nor was it at any time subject to the plaintiff’s judgment or execution. If or would it be if the •deeds, under which she holds, should be canceled. The debtor had neither title, nor any legal or equitable interest to which either could attachX This follows from the statute, which declares (1 R. S. 728, § 51) that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, “ no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in •such conveyance.” *47 As his case is presented, by the pleadings, the plaintiff, therefore, must fail. (Garfield v. Hatmaker, 15 N. Y. 475; McCartney v. Bostwick, 32 id. 53; Everett v. Everett, 48 id. 218.) The statute last cited, however, contains an exception, and provides (§ 52) that such conveyance shall be deemed fraudulent as against the creditors, at the time, of the person paying the consideration, and declares that “ where a fraudulent intent is not disproved, a trust shall result in favor of such creditors, to the extent that may be necessary to satisfy their just demands,” and the respondent seeks to maintain the judgment as one coming within this statute. It should, we think, be a sufficient answer that it was not put upon that ground by the complaint, nor at the trial. But waiving that, we are not able to see how the claim can be supported. The doctrine to be applied is well settled. To make out such a trust, the money must be paid at or before the execution of the conveyance, and not after. (Jackson v. Moore, 6 Cow. 706 ; Botsford v. Burr, 2 Johns. Ch. 405 ; Steere v. Steere, 5 id. 1 ; Jackson v. Seelye, 16 Johns. 197; Rogers v. Murray, 3 Paige, 390, 391 ; Russell v. Allen, 10 id. 249.) The whole foundation of a trust of this nature is "the payment of the money by the cestui gue trust, the real, not the nominal purand so its conversion into land. What are the facts here ? The Moravia property, which is .alone in question, was paid for by Mrs. Crane — no part of it by her husband. Kmiffin, the former owner of that property, took nothing from him. She paid by a conveyance of the Groton property, of which she had the legal title, assuming and agreeing to pay $4,500 of existing mortgages, and giving her own note for $400. If it be said that the debtor brought ■about the exchange of property, or even that he subsequently out of the profits of the business conducted on the premises paid the note, it cannot affect this question. The grantee’s note, the grantee’s assumpsit of the mortgages, and her conveyance in fact paid the consideration. Her credit and her property were accepted by the grantor. He had no claim at any time against the husband. So, if we go back to the Gro *48 ton property, we find from the uncontradicted evidence that Mrs. Crane first took a contract in writing, under which she agreed to pay the purchase-money, and by which the then owners, Hathaway and others, agreed to convey the property to her. The husband was not named. Upon the execution of the contract she paid $1,000, made up from $183 which she then had of her own, and $817 which she borrowed of her father-in-law upon her own note. Then when the deed was given she assumed payment of the existing mortgage, and executed another upon the premises for the unpaid purchase-money. In this case, therefore, it was her money and her credit which furnished at least $7,000 of the consideration. The other $1,000 is said to have come from the profits of the business carried on upon the premises, and that payments upon the mortgage were made from the same source. Upon the point now under consideration, I do not deem it material to inquire whether the business was that of the wife or of the husband. From what has been already stated, it is apparent that a part of the consideration came from Mrs. Crane and not from her husband — enough, therefore, to show that the plaintiffs case is not within the exception cre- The respondent cites various cases as supporting the judgment. (Wo od v. Robinson, 22 N. Y. 564; McCartney v. Bostwick, 32 id. 53, supra ; Baker v. Bliss, 39 id. 70 ; Ocean Nat. Bank v. Olcott, 46 id. 12.) In each of these the entire consideration for the property sought to be reached was paid by the debtor at or before the conveyance, and so they came directly within the statute (supra), and entitled the creditor to On the other hand, the doctrine that the trust, in order to exist, must have been co-eval with the deeds, and that after one person has made a purchase with his own money or credit, no subsequent transaction, whether of payment or reimbursement, can produce such a trust in his favor, is well settled. Says Chancellor Kent in Botsford v. Burr (supra): “ There never was an instance of such a trust so created, and there *49 never ought to be, for it would destroy all the certainty and security of conveyances of real estate. * * * The trust results from the original transaction at the time it takes place, and at no other time; and it is founded on the actual payment of money, and on no other ground.” And in Rogers v. Murray (supra), it is said to be “ impossible to raise a resulting trust so as to divest the legal estate of the grantee by the subsequent application of the funds of a third person to the improvement of the property, or to satisfy the unpaid purchase-money.” Such contributions and payments, if any there are, may doubtless in a proper case be the ground of some relief to the creditor of the third person, but it has neither been sought for in this action, nor is the evidence sufficient to warrant it. The plaintiff instituted the action on the ground that there was in favor of his debtor a trust of original ownership. He succeeded in the court below upon the statute which denies ownership to the debtor, but makes the consideration paid by him available to the creditor. In either aspect we think the case and the should have been dismissed. The judgment of the General and Special Terms should, therefore, be reversed and a new trial granted, with costs to abide the event. All concur. Judgment reversed.