McArthur v. Gordon

Landon, J. The Revised Statutes provide that no trust concerning lands-shall be declared, unless by operation of law, or by a deed or conveyance in writing subscribed by the party declaring the same. 2 Rev. St. p. 135, § 6. But chapter 322, Laws 1860, provides that the above provision of the Revised Statutes shall not be construed “to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same. ” “Any writing subscribed by the party declaring the same” are words broad enough to embrace the writing subscribed by the defendant Gordon, and placed upon record after Mrs. McDouall’s death, and also the deed given by him to Davis in 1877. The statute makes no requirement as to the time when the writing shall be made, or what becomes of it after it is made. It excludes parol evidence, but admits written evidence, provided the writing is subscribed by the party declaring the trust. It is of no consequence, therefore, that the-writing subscribed by Gordon was not contemporaneous with the deed to him, or was never delivered by him to any one except the county clerk. The only material facts are that the writing exists, properly subscribed, and that it declares a trust. These facts being undisputed, the paper is evidence that the trust was duly declared, and also of its terms. Cook v. Barr, 44 N Y. 156; Van Cott v. Prentice, 104 N. Y. 45, 10 N. E. Rep. 257; Wright v. Douglass, 7 N. Y. 564. The defendant Gordon, by the sealed instrument subscribed by him April-19, 1876, declared to “all men by these presents that because of certain real estate duly conveyed to me by Ellis McDouall, I * * * consider myself * * * bound to appropriate, or cause to be appropriated, for the comfortable support of Ebenezer Larmouth during his life, all the rents,-after deducting necessary expenses, of said real estate.” That this instrument was executed and placed on record by Gordon in testimony of his agreement with Mrs. McDouall, and to declare the object and conditions of her deed to him, was an inference of fact sufficiently supported by the deed and declaration themselves, construed in the light of the circumstances, and of the relations, of the parties to each other, and was greatly strengthened by the declarations of Gordon himself made immediately upon the death of Mrs. McDouall. [587] This instrument is a declaration of trust. Gordon thereby, in effect, declares himself to be the trustee of an express trust to receive the rents of the farm and apply them, less the necessary expenses, to the use of Ebenezer Larmouth during the life of the latter. 1 Rev. St. p. 728, § 55. The title to the farm is in Gordon. Larmouth takes no estate or interest in the lands, but may enforce the performance of the trust in equity. Id. § 60. The declaration of trust is separate from the conveyance to Gordon, and therefore section 65 of the statute, declaring that, where the trust is expressed in the instrument creating the estate, every conveyance or act of the trustee in contravention of the trust is void, does not strictly apply to Gordon’s conveyance to Davis. The declaration of trust itself permits a sale of the premises. It provides “that, if such real estate should be sold, the proper maintenance in board and clothing should be a first lien upon said real estate during the life of said Larmouth. The subscriber to this bond distinctly asserts that its obligations on him are limited to the rents of said real estate, or to the interest on the purchase money. ” Gordon could therefore sell the premises. The declaration of trust, however, was recorded. The recording act embraces every instrument in writing by which the title to real estate may be affected in law or equity. 1 Rev. St. p. 762, § 38. This declaration did affect Gordon’s title in equity, and therefore its record was notice to Davis, his subsequent grantee. Bacon v. Van Schoonhoven, 19 Hun, 158, 87 N. Y. 446; Grandin v. Hernandez, 29 Hun, 399. The deed to Davis shows that he had actual notice of a trust, and he therefore was put upon inquiry as to its extent. He took the premises impressed with the trust, and subject to it. The conveyance to him appears to have been made in order practically to secure its execution. But Gordon, having accepted the trust, could not divest himself of it without leave of the court. Brennan v. Wilson, 71 N. Y. 502. Davis held the land subject to the trust in favor of Larmouth that its net income should be applied by the trustee to Larmouth’s support. Davis gave a mortgage of $400 to Gordon upon the premises, to be paid in 1892, with annual interest in the mean time. Davis paid the interest, $24 per year, to Gordon. Davis is not responsible for Gordon’s failure to apply this interest to Larmouth’s support. If Davis had paid the proper rent or balance over the interest to Gordon, he would not be liable for Gordon’s non-application of it to Larmouth’s support, since Gordon is trustee and not Davis. But since, with full notice, he has had the fund from which the maintenance was to be raised, and he has not raised it, except the $24 per year, he is in default, primarily, it may be admitted, to Gordon, the trustee, but equitably to Larmouth, the cestui que trust; and since Davis and Gordon made the contract whereby Larmouth was relegated to Davis for support, and Davis made a contract whereby Larmouth was transferred to Plunkitt, and the result of the several contracts was that Larmouth got nothing, Davis may be charged as a co-wrong-doer with Gordon to the extent that Davis still retains what Larmouth should have received. 2 Story, Eq. Jur. § 1131a. Thus Gordon is liable to the extent of the entire default, and Davis, as his coadjutor, from the date of his purchase, less $24 per year. The trial court has measured that liability at the rate of $175 per year from March 6, 1876. Davis’ liability is for one year less. Complaint is made that it is an exorbitant allowance. It seems to be within the evidence, and we do-not feel authorized to reduce it. The statute of limitations is interposed. The statute has not begun to run with respect to the trust itself, for that has not been repudiated, and the trust remains in full force. Lammer v. Stoddard, 103 N. Y. 672, 9 N. E. Rep. 328. The sixtieth section of the statute of uses and trusts, above cited, authorizes Larmouth to enforce the performance of the trust in equity. He has at least 10 years after any default to enforce his equitable remedy. Code Civil Proc. § 388. Ten years from his mother’s death had not elapsed when this action was commenced. [588] The defendants complain that paroi evidence was improperly received. It was competent to give sufficient evidence of the surrounding circumstances to enable the court to ascertain who the parties were, what were their relations to each other, and what farm it was they were dealing with; in other words, sufficient to identify persons, parties, and subject-matter. The trust itself is that which the writing declares and defines. Since the trial court properly construed the writing and adjudged its effect, it is immaterial whether the case in this respect was cumbered with improper evidence. The defendant Davis claims that by his contract with Gordon he was only bound to furnish Larmouth with maintenance upon the farm itself, and that he was ready and offered to do this, but that Larmouth refused to accept it, and that if Larmouth did not receive support it was his own fault. The answer to this is that, since the trust was impressed upon the farm, it was incompetent for Gordon to make any contract or agreement with Davis whereby the terms of the trust should be in anywise diminished, or its performance made to depend upon a new condition. And this the law presumes that Davis knew, and therefore knew the risk he took when he stipulated for the new condition. The first and unconditional income from the farm was due to Larmouth, and when Davis took it he undertook that he would not defeat Larmouth’s right. The judgment is, in the main, right, but needs some modification. Ho vendor’s lien exists in favor of Larmouth. He was not the vendor, but, if we may so speak, he was the vendee of an equity in the premises. The statute already cited defines his estate and prescribes his remedy. Section 60, supra. The title to the farm is in Davis, subject to the execution of the trust. His title is subject to sale upon execution. Gordon is still trustee, and his removal is not asked. For aught we know, he and Davis, instructed by this judgment, will be zealous in the full performance of the trust. If it shall be necessary to remove the trustee, and appoint another, and commit the custody of the farm to his possession during the life of Larmouth, the facts justifying such action do not now fully appear. The judgment against Gordon is affirmed as to the amount of his liability. While we see no escape from this conclusion, we are impressed with the many circumstances of the case which show that Gordon sought to make provision for Larmoiith, and that his failure to do so has been of little advantage to himself. We therefore, in our discretion, direct that the costs of the respondents be paid from the proceeds of the judgment. The judgment against Davis must be reduced by deducting $175 for the year ending March 6, 1877, and interest to the date of the entry thereof, and also by $24 per year from March 6, 1878, with interest to the entry of the judgment. So reduced, the judgment is against him jointly with Gordon, and is affirmed, without costs in this court. The provision for the sale of the premises otherwise than upon execution is stricken from the judgment; the order to be settled in accordance with this opinion. All concur.