Ankele v. Blankner

Merrell, J.: The action is brought by one Robert Ankele against George Blankner, as executor of the last will and testament of Alice L. — 686 — Ankele, deceased, and others, to compel the conveyance to the plaintiff of a two-thirds interest in certain property at No. 1984 Valentine avenue, in the borough of The Bronx, city of New York. The plaintiff also seeks to compel the said executor to account for all income derived from the property since its transfer to deceased. The complaint alleges that the plaintiff, Robert Ankele, is the surviving husband of Alice L. Ankele, deceased; that the parties lived together down to the time of the death of plaintiff’s wife, which occurred on the 27th day of October, 1918; that Alice L. Ankele left a last will and testament, in which she empowered her friend, the defendant Frank J. Brockie, “ to take full charge of my property, No. 1984 Valentine Avenue, * * * with full power and authority to manage same, to collect all rents, * * * until the property is sold for a proper figure, not less than sixteen thousand dollars, and out of the net income he is to receive one-fourth of the net income, and my husband, Robert Ankele, is to assist Mr. Brockie in the up-keep of the place and is to have one-fourth of the net income, and my father and mother, David Curtis and Ann Curtis, are to have one-half of the net income, for moneys they have advanced me; and after the sale and all debts are paid in connection with that property, including fifteen hundred dollars due my husband, Robert Ankele, and including the five hundred dollars to be paid to Frank J. Brockie, I give, devise and bequeath the proceeds thereof, one-fourth to my said husband, Robert Ankele, two-fourths to my father and mother, David and Ann Curtis, or the survivor of them, and the remaining fourth to my friend Frank J. Brockie, and I give my executor full power and authority to make, execute and deliver proper deeds to cover the same to the purchaser and distribute the proceeds as above provided.” The complaint then alleges that the Valentine avenue property was originally purchased by the plaintiff with money belonging exclusively to him; that on or about the 1st day of May, 1916, the plaintiff executed a deed thereof to his wife, Alice L. Ankele; that said property was so conveyed pursuant to an “ agreement had with the decedent, the plaintiff and defendant Frank J. Brockie, wherein the said decedent, Alice L. Ankele, agreed to pay the sum of Fifteen Hundred ($1,500) dollars within a reasonable time, — 687 — after the said conveyance to her, and also agreed to pay the sum of Five Hundred ($500) dollars to the said defendant Frank J. Brockie. And further agreed that the said parties the plaintiff, Frank J. Brockie and said Alice L. Ankele, shall each have a one-third interest in said property, and that in the event of the death of either, the said plaintiff or Alice L. Ankele, deceased, the share of the one so dying shall go to the survivor, that is plaintiff or the decedent; ” and “ that the plaintiff relying upon the strength of the aforementioned agreement, and upon the promises made by Alice L. Ankele, the said decedent, transferred the property to the said Alice L. Ankele, deceased.” The Valentine avenue property is alleged to be of the value of $12,000, subject to a mortgage upon which is due the sum of $6,500. The answer of the defendant David Curtis denies the allegations of the complaint respecting the agreement therein alleged to have been made by Alice L. Ankele, deceased, at the time of the aforesaid conveyance to her, and alleges as a “ separate and complete defense: ” “ V. That the alleged agreement mentioned and described in paragraph ‘ Seventh ’ of the .complaint herein was not, nor was any note or memorandum thereof expressing the consideration in writing, subscribed by Alice L. Ankele or by her lawfully authorized agent.” To this “ separate and complete defense ” the plaintiff has demurred, and such demurrer has been overruled by the court below. For the purposes of the demurrer, this defense must be treated as an entirely separate and distinct part of the answer. The defendant is not entitled to the benefit of any denials contained in. any other part of the answer, as such denials are not repeated by reference or otherwise incorporated in this separate affirmative defense. (Douglass v. Phenix Ins. Co., 138 N. Y. 209; Bulova v. Barnett, Inc., 193 App. Div. 161.) General denials are, of course, improper in such an affirmative defense, but, when necessary, special denials may be therein alleged. It, therefore, follows that all of the allegations contained in the complaint must be assumed to be true, as well as the facts stated in this defense. The complaint does not allege that the agreement made with deceased was in writing. If upon reply or at the trial — 688 — the agreement proves to have been oral, the Statute of Frauds will be a good defense, unless facts appear which require the court to grant plaintiff equitable relief, in order to prevent the statute becoming an instrument of fraud. (See Real Prop. Law, §§ 242, 259.) The question to be determined, therefore, is: Does the complaint state facts requiring the intervention of a court of equity? The plaintiff claims that the facts stated entitle him either to a specific performance of the alleged agreement and to an accounting, or to such other relief as will place him in the position which he claims he has the right to occupy by reason of his reliance upon the alleged agreement of his wife made prior to his conveyance of the property to her. The complaint, carefully analyzed, does not fall within any of the cases cited by the appellant. The facts stated do not disclose with sufficient clarity what the agreement relied upon was. It does not appear to whom the sum of $1,500 was to be paid; no time is stated when the plaintiff was to obtain or receive a conveyance of his alleged one-third interest in the property conveyed; nor does it appear that Alice L. Ankele received the title in trust .to convey, or that she promised in any event to convey, either by deed or will, any interest in the property to the plaintiff. At the time of the conveyance plaintiff was the owner of the premises and could have reserved to himself such rights therein as he desired to retain. The deed, however, was absolute upon its face. The bare statement by plaintiff that he was to have a one-third interest in the property during his life and another one-third in case he survived his wife is not sufficient. The complaint fails to set forth an agreement which can be specifically enforced. Nor are the facts alleged sufficient to create a resulting trust. It is not alleged that the deed was improperly drawn and did not correctly state the intention of the grantor, and no reformation thereof is asked. So far as appears, the conveyance was absolute and voluntary. It was not given to accomplish any purpose which the plaintiff could not, at the time, have accomplished himself. So far as appears, the grantee could, at any time, give an absolute title to the property. The most that can be said from the facts alleged is, that the grantee may have promised, as consideration for — 689 — the conveyance, to pay $1,500 to some unnamed person and $500 to the defendant Frank J. Brockie. If such an agreement can be proved and has not been performed, an action at law will he to recover damages for the breach. The plaintiff cannot now be heard to say that a part of the title was reserved by him at the time of his conveyance to his wife. Having thus conveyed his property without reservation, a mere statement that plaintiff was to have “ a one-third interest in said property ” is not sufficient to create a trust for plaintiff’s protection. Moreover, no fact is alleged which shows any intention on the part of the plaintiff to create a trust or that his wife was to act as trustee. Plaintiff even goes so far as to say, “ that at no time since the transferring of the property to the deceased has the said deceased, Alice L. Ankele, accounted for. the income derived from the said property.” In other words, it appears upon the face of the complaint that during her lifetime the grantee had full possession of the premises and received the income and profits, which fact is perfectly consistent with absolute ownership, but wholly inconsistent with plaintiff’s claim that it was agreed that he should have a one-third interest and one-third of the income. Had the complaint alleged that deceased, during her lifetime, made payments of rent to the plaintiff or that she recognized plaintiff’s alleged rights in any manner inconsistent with her claim of ownership, such acts would have some probative force. Not only did the grantee receive an absolute deed, but she enjoyed and possessed the property during her lifetime without any interference or participation therein on the part of the plaintiff, so far as appears in the complaint. Nor is the wife charged with any fraud or misrepresentation in order to obtain the title. No good reason is, therefore, shown why the plaintiff should now ask a court of equity to relieve him from the situation in which he is and which has resulted from his voluntary and absolute deed to his wife. Certainly the vague and indefinite agreement claimed to have been relied upon by him is insufficient to raise a trust in his favor and to require the intervention of a court of equity for that purpose. (McCartney v. Titsworth, 119 App. Div. 547; — 690 — Gould v. Gould, 51 Hun, 9; Woolley v. Stewart, 222 N. Y. 347.) The facts in the case at bar differ materially from those in Gallagher v. Gallagher (135 App. Div. 457; affd., 202 N. Y. 572) and other cases cited by appellant. In the Gallagher case the deed had been given by a man to his wife for the sole purpose of enabling her to become the surety on the husband’s bond. It is apparent that in such case it was necessary for a court of equity to intervene in order to prevent a fraud. Similar situations arose in Amherst College v. Ritch (151 N. Y. 282) and Ahrens v. Jones (169 id. 555). A court of equity will not override the Statute of Frauds unless it clearly appears that such statute would in the given case, except for the intervention of a court of equity, be an instrument of fraud. The facts alleged in the complaint in the case at bar show no such necessity. The order appealed from should, therefore, be modified by providing that the complaint be dismissed unless the plaintiff serves an amended complaint within twenty days from service of the order to be entered hereon, leave for which is granted on payment of ten dollars costs, and as so modified affirmed, without costs of this appeal. Dowling and Laughlin, JJ., concur; Page and Greenbaum, JJ., dissent.