Hemans v. Lucy

E. D. Smith, J. The plaintiff had the clear legal title to the premises in question, and the questions presented upon the defendant’s exceptions arose upon the equitable title set up by the [525] defendant in her answer, and sought to be established at the trial. The proofs clearly show that the defendant, at the suggestion of Joseph Fellows, the grantor of the plaintiff, and upon his assurance that he would advance the money to enable her to complete the purchase, made the contract for the purchase of the premises in question in her own name; that'Mr. Fellows advanced for her the purchase-moneyto fulfill said contract, and that he took the title to said premises as and for his security for such advance. That the defendant immediately went into possession of said premises and made repairs thereupon, fitting up the house thereon for a residence for herself with the knowledge and assent of Mr. Fellows, he making an advance also of the money requisite for the payment of the expense of such repairs, and that the said premises were so purchased and fitted by her for a home for herself and family under the advice of Mr. Fellows, who was a friend of her’s, and was a constant visitor of her family at such house after said purchase during his life, and that she continued to reside in such house from the time of the said purchase in 1869 till the death of Mr. Fellows in 1872, and since till the commencement of this suit. Upon these facts the defendant clearly became the debtor of Mr. Fellows for the advances, and he took the title merely as a trustee or mortgagee for his security for the same according to the cases. McBurney v. Wellman, 42 Barb. 390; affirmed in court of appeals by title Dodge, Ex’r, v. Wellman, 43 How. 427; S. C., 1 Abb. Ct. of App. Decisions, 512; Carr v. Carr, 4 Lans. 314; affirmed in court of appeals but not yet reported (a manuscript opinion of the court being before us). The defendant had an equitable interest in said premises which could not be cut off without foreclosure. The facts stated and established at the trial made out a complete equitable defense to the action. The plaintiff should therefore have been nonsuited at the circuit or a verdict directed for the defendant. The exceptions taken to the rulings of the circuit judge, in conflict with these views, are consequently well taken, and a new trial must therefore be granted, with costs to abide the event. New trial granted.