Opinion
April 7, 1911.
Samuel J. Rawak, for the appellant.
Arthur Garfield Hays, for the respondents.
The plaintiffs, certain heirs at law of Max Moskiewitz, deceased, alleged that he purchased certain premises and paid the consideration therefor, taking title in the name of his wife, the defendant Regina Moskiewitz, for the purpose of placing them beyond the reach of future creditors, and thereafter died leaving sufficient personal property to pay all of his debts. The prayer for relief is that it be decreed that the said defendant held the property in trust for the said Max Moskiewitz, and that she still holds it in trust for his heirs at law.
The respondents do not contend that a trust resulted to the said Max Moskiewitz from the mere fact of the payment of the consideration by him. (See Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 74; revised by Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 94.) Even assuming that the person paying the consideration is not chargeable with an intent to hinder, delay or defraud creditors, when he takes a conveyance in the name of a third party for the purpose of placing the property beyond the reach of future creditors (see McCartney v. Titsworth, 119 App. Div. 547), still such a purpose does not of itself afford ground for invoking the remedial jurisdiction of equity. No fact is alleged in the complaint to bring this case within the line of cases in which equity has constructed trusts, for the purpose of preventing the consummation of a fraud by one occupying a position of peculiar trust and confidence. The fact that the grantee named in the deed was the wife of the person paying the consideration does not alone justify the plaintiffs in invoking the doctrine of constructive trusts.
It is claimed, however, that the complaint is broad enough to justify the inference that the said defendant agreed to receive and hold the legal title in trust for her said husband. Of course such an agreement would be void unless in writing, and the breach of a void agreement is not the kind of fraud which will justify resort to equity, but that question is not presented by the pleadings. We do not think, however, that such an agreement is pleaded. It is to be found, if at all, in the 8th paragraph, which is as follows: "That the defendant Regina Moskiewitz had full knowledge of all of the facts connected with the purchase of the said property and consented and did receive the title thereto, and held the same in trust for the said Max Moskiewitz, deceased." From that it is to be inferred that the said defendant had knowledge of her husband's purpose in taking the conveyance in her name, and that she consented to and did receive the legal title with that knowledge. It does not follow from that that she agreed to hold the legal title in trust for her husband. The statement that she "held the same in trust for the said Max Moskiewitz, deceased," is but the statement of a legal conclusion and does not justify the inference that she agreed thus to hold the legal title. We have then the bare fact that the said defendant's husband, with her knowledge and consent, paid the consideration and procured the title to be taken in her name, for the purpose of placing the property beyond the reach of future creditors. No trust results from such a transaction and certainly equity will not construct one. (See Fagan v. McDonnell, No. 1, 115 App. Div. 90; affd., 191 N.Y. 515, and cases cited.)
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.