majority">Beaming, Y. C.

It is urged on behalf of defendant Single that the title of Herman Ostheimer was a trust title as to the one-third share now held by defendant, and that in consequence no dower right in that share' has been acquired by complainant. I am entirely satisfied that it was the original intention of the three parties named (Herman Ostheimer, George Walker and defendant) that the land should be regarded as owned by them as tenants in common. Had they taken the precaution to properly reduce their trust agreement to writing no difficulty would now be encountered in giving effect to the intention of the parties to the *542transaction. But the statute of frauds requires that an express trust in land must be manifested and proved by some writing, signed by the party to be charged. The effect of this statute is to render the evidence offered insufficient to establish an express trust in favor of defendant.

It is also manifest that a resulting trust will not arise from the circumstances proven. When a person purchases land with his own money, and takes title in his own name, a .trust cannot be raised in favor of another by reason of the existence of a parol agreement upon the part of the purchaser that he would make the purchase for the benefit of another and permit the other to thereafter make payment. One who sets up a resulting trust in himself, the conveyance being to another, must show that the land was bought with his money, and not merely that the purchase was made for his benefit or on his account. A subsequent payment of the money will not by relation attach a resulting trust to the original purchase, for a resulting trust arises from the fact that the money of the real and not the nomina] owner formed the consideration of the purchase at the time and became converted into land, 3 Reed St. Frauds §§ 911, 922; 3 Pom. Eq. Jur. § 1037; Howell v. Howell, 15 N. J. Eq. (2 McCart.) 75; Cutler v. Tuttle, 19 N. J. Eq. (4 C. E. Gr.) 549, 562; Tunnard v. Lettell, 23 N. J. Eq. (4 C. E. Gr.) 264, 267; Krauth v. Thiele, 45 N. J. Eq. (18 Stew.) 407, 409; Whitley v. Ogle, 47 N. J. Eq. (2 Dick.) 67, 69; Botsford v. Burr, 2 Johns. Ch. 405, 409; Bailey v. Hemenway, 147 Mass. 326. In view of these well-settled principles it is manifest that no trust resulted in favor of defendant unless a portion of the money which was by Ostheimer paid for the land may be regarded as having been defendant’s money. I am unable to so regard the-facts. The money which was paid for the land at the time of the execution of the deed to Ostheimer was Ostheimer’s money. Itwas money raised by the execution of a mortgage by him on land of his own. While it appears that his purpose in borrowing this money was to enable him to purchase the land in question for the benefit of defendant as to the undivided, one-third of it in order that defendant could thereafter pay the one-third and take title to that portion, yet'it is clear that the ’ transaction *543cannot properly be considered or treated as a loan of one-third of the money to defendant. Had defendant failed to subsequently pay Ostheimer one-third of the purcba.-e price of the bind, it is clear that the latter could not have maintained an action on contract for the money based on the irmsaetions antecedent to the purchase.

It is also manifest that the facts proven do not raise a constructive trust ex maleficio. @ Pom. Bq. Jur. § 10&6.

I also entertain the view that the existence of the written agreement 'wherein Ostheimer agreed to convey to defendant the one-third part of the property purchased operates to defeat any claim of a trust estate. This instrument has been enforced by defendant as an agreement of sale to the extent of the procurement of a decree for specific performance. Its terms are also inconsistent with the existence of any trust estate.

It is further urged on behalf of defendant that as complainant is sole devisee of the estate of Herman Ostheimer and has filed no dissent under section 16 of the Dower act (Gen. Stat. ¶. 1278) she cannot now claim a dower right in the premises in -question. The section cited does not have the effect contended for. By the language of that section the widow’s dower is barred -only in other lands devised by her husband’s will.

The further claim is made on behalf of defendant that inasmuch as the decree for specific performance, to the effect that Ostheimer should convey to defendant free from encumbrance, has not been complied with in that complainant did not join in the deed executed pursuant to that decree, a claim now exists in favor of defendant against the estate of Ostheimer to the ■extent of the value of the dower interest of complainant.' This claim defendant asks to have set off against the present claim for dower by reason of the fact that complainant is sole devisee of the estate of Ostheimer. I doubt the right of this court to -enforce such an offset, and especially so in the present condition of the record. To do so involves an affirmative adjudication that the estate of Ostheimer is liable on such a claim. That ■adjudication properly belongs to a law court after a claim shall have been filed with the executrix of the estate. I do not understand that such claim has been filed.' It involves also an af*544firmative adjudication that complainant has, as devisee, received assets to the amount of the claim. That fact can only be finally ascertained at the conclusion of the administration of the estate. If the claim against the estate can be established and the assets of the estate are large enough to charge complainant as devisee with the amount of the debt, then defendant is entirely secure from loss. In case of failure of assets there is no liability upon the part of complainant as devisee.

I am obliged to advise the assignment of dower in favor of complainant.

Citation profile

Relationships

How this case has been treated — in progress