SUPREME COURT.

#### Emma J. Mason *agt.*Lydia C. Libby.

*Husband and wife—Daughter—earnings of wife*— *conveyance ly husband to wife—resulting trust—Statute offrmds—Petrol evidence*— *Delay in*

Where moneys are received by a person, in trust, to invest the same for another, and the same be invested by such person in land in his own name, the same will be charged with a trust in favor of the one for whose benefit the money was to be invested.

It requires evidence of the most satisfactory character to engraft a trust upon land held by an absolute title in respect to which there is no writing.

The resulting trust, “to be established by parol evidence,” is when the consideration-money for the purchase belongs to the *cestui que trust,*or is advanced by some other person as a loan or gift to him.

A husband may permit his wife to labor for her own account; he may give her the proceeds of her labor, or allow her to appropriate the same to her own use, by investing the same in real estate in her own name *(Seaman agt.WaB, antep,*48).

Where real estate was purchased with moneys earned by the wife, her right to the moneys being acknowledged by the husband, and the title to the real estate was taken in the first instance in the name of the husband, and the husband afterwards, in recognition of the equitable claims of the wife, conveyed the same directly to her, although the deed is-void at law, it may be sustained in equity; and, where the circumstances justify the conclusion, the transaction may be sustained as an advancement of the wife by the husband.

Equity will not, however, enforce a grant by a husband to his wife of all his property, by which he will be denuded, or which is in fraud of the claims of his creditors.

*Special Term, New York, September, 1877.*

*Lewis &*Beecher, for plaintiff.

*C. B. Ripley and S. P. Nash,*for defendant.

*105Van Vorst, *J.*

The plaintiff, who is the daughter of the defendant, has offered no evidence to sustain the claims in her complaint, with reference to the Tenth and Eleventh street houses, the title to which is in the defendant. And on the trial and argument, plaintiff’s counsel limited her demand for relief, to the Williamsburgh and East Broadway property.

It is conceded by the defendant, that this latter property was acquired through the proceeds arising from the sale of the farm at Scotch Plains, Hew Jersey, the title to which stood in the name of the defendant when sold, as it had for a period of over twelve years. These proceeds, the plaintiff claims, were funds received and held by her mother, in a fiduciary capacity, in trust to invest for her. That the defendant had promised her husband, the plaintiff’s father, as a consideration to his signing the deed upon the conveyance of the Hew Jersey farm, that she would invest these proceeds for his and her daughter. If the claim of the plaintiff be well founded, that the proceeds of the Hew Jersey farm were received by her mother in trust for the plaintiff, this court would follow the funds and charge with a trust, in the plaintiff’s favor, the property purchased therewith, although the title was taken in the mother’s name. In this view, it is first to be determined whether the fiduciary relation claimed did, in fact, exist, and whether these proceeds received by the mother belonged, in law or equity, to her daughter, or were held in pursuance of a trust in her favor. The Hew Jersey farm was purchased in the year 1851, and the title was taken in the name of the plaintiff’s father, the defendant’s husband. But the defendant, on the trial, testified that, although the deed went to her husband, the consideration was paid by herself.

It appears that the husband and wife, shortly after their marriage, and in the year 1833, commenced a small business in a store in Grand street, Hew York city. The wife had property, to the value of a few hundred dollars, belonging to her before her marriage. The store was conducted almost *106exclusively by the wife; she gave it her personal care and attention for a period of nearly eighteen years, during "which time the plaintiff was born, who is an only child. The husband generally bought the goods, but the wife- attended at" the store, and sold them and managed the details of the business. For a considerable portion of the time, the husband had other affairs which engaged much of his individual attention. It must be believed, under the evidence, that the accumulations of money arising from the business were 'greatly owing to the diligent efforts and attention of the wife. A portion of these moneys were deposited by her, from time to time though a series of years, in savings banks in the city of New York, in her own name, and were drawn out by her as her exigencies required. Property, real estate, was purchased, and finally deeded to her in her own name, without real or apparent opposition from her husband. It may be reasonably concluded that he acquiesced in the justice and equity of a claim on her part to the moneys so deposited, and invested in real property. The case would indicate that, and there is nothing which shows the contrary. It is, doubtless, true, that the earnings of the wife at this time, the fruits of her labors, belonged to her husband; but, in the absence of claims or objections on the part of creditors, he could surrender a portion of these earnings to his wife. He might acknowledge her equitable claims to them, and could consent to the acquisition of property through them, in her own name, and to her own use *(Kelly*agt. *Campbell*2 *Abb. Court of Appeals*Decisions, 494).

A husband may permit his wife to labor for her own account. He may give her the proceeds she has earned, or allow her to appropriate them to her own use *(Peterson and wife*agt. *Mulford, New Jersey Court of Errors and Appeals [7th Vroom.],*486; *Skilman*agt. *Skilman,*2 *Beasley R.,*403; *Donovan*agt. *Sheridan, 37 Superior Ct. R.,*256, 262).

It is claimed by the defendant, and she has so testified, *107that these moneys acquired by her own efforts, her savings and earnings, together *with rents*of *her own*property, paid for the New Jersey farm.

There is no contradiction of her evidence that she paid for the New Jersey farm, unless it be found in the language of the deed by which it was conveyed to her husband, which, in the usual form, acknowledges - payment of the consideration. But it is not improper to explain, by oral testimony, the deed in this respect, and show that the consideration was, in fact, paid with the wife’s money.

In 1853 the husband deeded the farm directly to his wife. This conveyance, though void at law, was not necessarily so in equity *(Hunt*agt. *Johnson,*44 *N. Y.,*27; *Townshend*agt. *Townshend,*1 *Abb. New Cases,*81; *Simmons*agt. *McElwain,*26 *Barb.,*419; *Shepard*agt. *Shepard,*7 *Johns. Ch.,*57; *Story's Equity Jurisprudence, vol.*2, *sec.*1374). Courts of equity will uphold grants from a husband to his wife, when they would be void at law. The above cases uphold that doctrine. Equity would not, however, enforce grants of all his estate to his wife, by which he would be denuded *(Beard*agt. *Beard,*3 *Atk. R.,*72).

The circumstances of the husband would be considered when creditors are concerned *(Coates*agt. *Gerlach,*8 *Wright*[44 *Penn. S.*R.], 45). The husband did not denude himself by this conveyance to his wife. He had other property and means; real estate and stocks. The conveyance by the husband to the wife may well be regarded, in the absence of all evidence to the contrary and in view of the foregoing facts, as a recognition on the part of the husband, of the equitable claims of his wife to the land, or, as a transaction in the nature of an advancement of her (2 *Story's Equity Jurisprudence, sec.*1204; *Welton*agt. *Divine,*20 *Barb.,*9, *and cases cited).*It is an indication of a clear intention on the husband’s part to invest her with the title to this property. There were no impending claims of creditors. The act was voluntary; there is nothing to show *108the opposite but that he intended, in good faith, to invest her with the title, nor is there any good reason why a court of equity should not give effect to the husband’s act and intention at the time. In May, 1866, the husband, who was then and had been for several years living in the state of Virginia, in a state of voluntary separation from his wife, joined with her in a conveyance of the farm to John Taylor Johnston.

The consideration realized on this sale, $10,000 and upwards, was wholly received by the wife, who conducted all the negotiations for, and consummated, the sale, her husband being in Virginia, where he executed the deed.

The proceeds received by the wife she invested in her own name, in the property, the subject of this action, precisely as' the farm stood before it was sold to Johnston, The trust claimed by the daughter grows out of the signing of this deed by her father. She lias testified that her father, when applied to by his wife for the purpose, objected to singing the deed, unless upon the condition that the defendant would invest the proceeds for their daughter.

There is reason for the conclusion that the husband did at first decline to sign the deed. The daughter, who appeared to be in communication with him, so reported to her mother. On the 7th day of December, 1865, the defendant wrote to her husband in Virginia, a letter, in which she says: *“ I*have received a proposal concerning the sale of my farm, said to have come from you, the sum of which is that you will join in the sale, if I will give to Emma the sum of $1,700, and also that I will arrange matters so that Emma can have the full amount at my death ; also, that I will put the proceeds in the hands of a trustee. I will be willing to bind myself to leave the whole amount to Emma at my death; as for the other proposals, I could not accede to them. The farm is now sold for more money than it may sell for again, and if you don’t join in the sale it may be the means of breaking it up. If you have Emma’s good at heart you will not refuse to join in the sale.” * * *

*109*“*1 wish you to write me by return of mail, and tell me decidedly if you will sign your name to the deed for the farm, and prevent my having to resort to other measures to obtain a deed, which will cost money, that might be for Emma’s use.”

One cannot fail to observe the firm ground upon which the defendant places herself, in the light of the reported refusal of her husband to sign the deed. She asks for the signature, evidently as a right, and which, if withheld, could be enforced. There is no hesitation or weakness which a conscious infirmity of title in equity, as between herself and husband, would suggest. She speaks of the property as *“ my farm.”*She unqualifiedly rejects the reported proposal that she should give a proportion of the proceeds to her daughter in cash, or that the balance should be placed in the hands of trustees ; she imposes her own conditions.

This letter is only consistent with an earnest conviction on the part of the defendant, that she owned the farm and had a right to dispose of it.

Eo letter is produced showing the husband’s reply to his wife’s demand for his' signature. The daughter, however, testifies that he still refused. She also testifies that her mother afterwards wrote a letter to her father, making some promise to invest the proceeds for her. Eo such letter is produced. Its general contents were, however, allowed to be proved orally by the daughter, who said she had read it, but that it was lost or destroyed. But I do not regard the contents of this letter so proven as establishing the trust claimed. The mother testifies that she wrote no letter to her husband other than the one of the date of December seventh; but another was produced by the daughter, written to her father by her mother, dated February eighteenth, of the following year. It is, however, entirely silent on the subject of any trust.

Subsequently the mother went to Virginia for the purpose of obtaining the signature of her husband to the deed, taking her daughter with her. The plaintiff, who testifies she was *110present when the deed was signed, says: “ My father objected to signing the deed; my mother said she was willing to do what he required of her, namely, to invest the money for me; what more do you want ? My father turned to me and told me he hoped I would never regret what I had done. I was urging him to sign it. Said I, father, I will abide by the consequences. He signed the deed and threw the pen from him, saying: c I hope you are satisfied and will never reproach me with the result, whatever it may be.’ ”

The defendant denied the occurrence testified to by the plaintiff, and testified that the deed was signed without any .condition imposed by the father of plaintiff, or any promise whatever, on her part, with regard to the proceeds.

Some time after the consummation of the sale of the farm, and the investment by the defendant of the proceeds in the Williamsburgh and East Broadway property, the husband returned to New York from Virginia, and lived in the Williams-burgh house, occupied by his wife. They did not, however, live together as husband and wife. He remained there some three or four years, and then went to his daughter’s house, where he died in the year 1873. The title to the Williams-burgh and East Broadway property was taken in the years 1867 and 1868.

No steps were taken by the husband in his lifetime to interfere with his wife’s enjoyment of the property, or with her right and title to the absolute ownership thereof, nor by the daughter until the commencement of this action in the year 1874. This failure to take appropriate action to impress this property with a trust, during this period of five years and upwards, the defendant in the meantime being in the enjoyment and actual use of one of the houses, and exclusively of the rents and profits of the other, under a claim of title adverse to all others, is unfavorable to the plaintiff’s case. In cases of alleged breaches of trust of the character claimed in this action, parties claiming to be injured should move without delay. Nor was any action brought in the *111lifetime of the father, whose evidence for the plaintiff, in the light of her claim, would have been of advantage to her. The failure promptly to act is against the justice of the plaintiff’s case. But apart from that, I conclude that the fiduciary relation claimed by the plaintiff, under the evidence, never, in fact, existed; that the defendant did not receive the proceeds of the Hew Jersey farm in trust to invest the same for the plaintiff, but, on the other hand, that these moneys equitably belonged to her.

It is true that according to the laws of Hew Jersey the wife could not give a good conveyance of the farm.

She might hold but could not convey *(Naylor*agt. Field, 5 *Dutcher,*287).

But this does not establish that the husband, as between himself and wife, had any just claim to the proceeds of this farm, which had so long remained in her name, and in possession of which he left her, when he departed for Virginia. Signing the deed would not give him these proceeds, or the right to control them, if he was not otherwise entitled.

He might refuse to sign. But by simply signing he could not determine the direction which should be given to the proceeds, or impress a trust upon them. That could only be done by the person entitled to the proceeds, and such the defendant must be adjudged to have been.

Ho writing is produced signed by the defendant, in which she obliges herself, or undertakes, to invest the proceeds of the Hew Jersey farm for the plaintiff. Ho writing signed by the father even indicating any such direction to these moneys, is produced. If he hesitated to sign the deed and angrily threw the pen aside, and intimated that his daughter would regret the act, why was not a writing demanded from the defendant before the deed was signed ?

It is evident that no engagement satisfactory to the father had been yielded by the defendant, if this occurrence is truly described by the plaintiff.

If it was, however, that her word was distrusted, then an agree*112ment or promise in writing would naturally suggest itself. It does not appear that any was asked; none was certainly yielded.

It requires evidence of a satisfactory character to engraft a trust upon property held by an absolute title, as to which there is no writing. Parol evidence is to be received with caution *(Boyd*agt. *McLean and*wife, 1 *Johns. Chy.,*583). Parties are not to be divested of estates standing in their name, except upon the most satisfactory evidence. The burden of proving that these moneys belonged to her father, and through him to herself, rested upon the plaintiff in order to create a resulting trust.

This she has failed satisfactorily to do. The resulting trust, not within the statute of frauds, and which may be shown without writing, is when the purchase is made with the proper funds of the *cestui que trust,*and the deed is not taken in his name *(Bottsford*agt. *Burr,*2 *Johns. Chy.,*405, 414, 415); or, as was said in *Gilman*agt. *Gilman*(1 *Barb. Chy.,*499-514), by the chancellor: “ But to constitute a resulting trust, to be established by *parol evidence,*it is necessary that the consideration-money for the purchase should belong to the *cestui que trust,*or should be advanced by some other person as a loan or & gift to him” *(Lathrop*agt. *Hoyt,*7 *Barb.,*79; *Nixon’s Appeal,*63 *Penn. State R.,*281; *White*agt. *Carpenter,*2 *Paige,*238; *Steere*agt. *Steere,*5 *Johns. Chy.,*1). This conclusion disposes of the plaintiff’s case.

The only satisfactory evidence looking at all to a prospective provision- in favor of the daughter, recognized by the mother, is contained in her letter of December seventh, an extract of which is given above, in which defendant says: “ I will bind myself to leave the whole amount of the money to Emma at my death.” The plaintiff, for the fruition of her expectations with regard to the proceeds of the Hew Jersey farm, must await the event of her mother’s death, which, by occasion of her toils, trials and advanced years, will probably occur on a day not distant.

The plaintiff’s complaint must be dismissed, but, for obvious reasons, without costs.