Opinion
April 24, 1914.
Michael J. Tierney [ John F. Lambden with him on the brief], for the appellant.
Humphrey J. Lynch, for the respondent.
The Special Term found that the plaintiff and defendant agreed that plaintiff would improve the premises of the defendant with the understanding that the parties would then intermarry, and at that time the defendant would convey a one-half interest therein to the plaintiff for use as their home; that the plaintiff made such improvements and expended incidental moneys, and advanced moneys to meet interest charges on an incumbrance, but that thereafter the defendant so conducted herself as to render it impossible for the parties to intermarry, excluded the plaintiff from the premises and failed to convey any part of them to the plaintiff. Thereupon, and upon such findings only, the court impressed a trust on the premises and directed a sale thereof in satisfaction of the plaintiff's claim.
The respondent would maintain this judgment on the theory of equitable lien. The difficulty in the way of affirmance is that proof of a breach of the contract only does not warrant this decree of the equity court. There should also appear proof that clearly established the intention that the premises would "be held, given or transferred as security for the obligation" of the contract. (Pom. Eq. Juris. [3d ed.] § 1235; 19 Am. Eng. Ency. of Law [2d ed.], 15; Wright v. Ellison, 1 Wall. 16.) In the cases cited by the learned counsel for the respondent there is such proof, which is lacking in the case at bar.
The judgment must be reversed and a new trial must be granted, with costs to abide the final award of costs.
BURR, CARR, STAPLETON and PUTNAM, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.