[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 540 The order appealed from does not show that the new trial was granted upon a question of fact, and the contrary must be presumed. (Code of Civil Procedure, §§ 1337, 1338.) Nor are we to consider the weight of evidence produced upon the trial by the respective parties, but whether there is any which would support the findings of the referee. An examination of the record satisfies me that there is, and as the conclusion of the General Term does not seem to have been otherwise, it cannot be necessary to re-state here the testimony on which, as I think, the findings may stand. Do these findings support the conclusion of law *Page 542 upon which the decision of the referee depends? The referee finds that Elizabeth Barbara Reitz, "during her life-time, and until her death, entrusted the defendant, as her agent, with her business and with the settlement of the estate of her husband. That as her agent he received moneys belonging to her, with which he purchased certain lots for her, but took the title thereto in his own name; that he afterwards, with the consent of said Elizabeth Barbara, and the plaintiff, erected upon said lots four certain buildings, and received rent therefor, as alleged in the complaint" (that is, as her agent); "that the interest of said Elizabeth Barbara in said lots has descended to the plaintiff and defendant in equal terms;" that the defendant holds "the title to said lots for the equal use and benefit of himself and the plaintiff; and as conclusion of law the referee directs that he render an account of all moneys and effects that have come to his hands as the agent of the said Elizabeth Barbara during her life-time, and of all the rents which have come to his hands since her death." The decision of the referee has been set aside, and a new trial ordered, by the General Term. This order is appealed from, and the learned counsel for the respondent now urges in its support: First. That there is no finding by the referee that the defendant took the deed above referred to in his own name without the knowledge or consent of his mother, and, therefore, that the case is within the statute of uses and trusts. (1 R.S., 728, tit. 2, part 2, ch. 1, art. 2, §§ 51, 52.)Second. That the claim is barred by the statute of limitations.
I am unable to see that the statute applies to the defendant's case. The defendant occupied towards his mother, a fiduciary relation. He was her agent, as such he received her money, invested it in land for her, but he took the title in his own name. Not with her consent, or with her knowledge. The statute (§ 51), was obviously intended to prevent a secret trust in favor of the person paying the consideration. In Siemon v. Schurck (29 N Y, 610), after quoting the sections above referred to, HOGEBOOM, J., says: "It was *Page 543 not deemed consistent with fair dealing and just policy that a person for whose use such a conveyance was made, and who was designed to reap all the benefits thereof, should thus conceal a real ownership under an assumed name, and the statute, therefore, virtually imposed upon him the penalty of the forfeiture of his estate." Such result could not have been intended, unless the person paying the money was aware that the deed was so taken. It implies the assent and co-operation of two persons, one paying the money, and so inducing the grant, and the other receiving it. There is then apparent, an intent to violate the statute. The facts in this case exclude such conclusion. Here one person, the agent, confessedly buying property for the principal, by mistake or fraud took the title in his own name. No other inference can be permitted. It was his duty to take the conveyance in the name of his principal, and he cannot profit by his omission to do so, or successfully invoke against her, or those claiming under her, a statute which was designed to prevent, not to encourage fraud. (Siemon v. Schurck, snpra; Day v. Roth, 18 N.Y., 448;Lounsbury v. Purdy, 18 id., 515.) But if the statute (supra,) has an application, it is quite clear that as to the lots in question, and the relief depending thereon, the referee did not err. Section fifty-one, is so qualified by section fifty-three, that it does not extend to cases "where the alienee named in the conveyance shall have taken the same in his own name, without the consent or knowledge of the person paying the consideration." The complaint alleges that the purchase was made by the defendant with his mother's money, received by him for investment for her, part of it from the plaintiff's hands, who "supposed that such investment would be made in the mother's name, as it was distinctly understood and agreed between the plaintiff and defendant, that such investment should be so made," and other allegations to the same end. They in substance amount to an averment that the deed was taken by defendant in his own name, without the knowledge or consent of the mother. The evidence on one *Page 544 side clearly establishes that fact. The defendant by his answer and his testimony substantially denies it, as he also denies that he bought the lots for his mother, or with her money. Yet the referee finds to the contrary, and in this finding is necessarily implied an absence of consent or knowledge, that he should take the title absolutely in his own name.
An absolute conveyance is one which vests the entire interest in the property conveyed, both legal and equitable in the grantee. Consent to such a conveyance would be inconsistent with the finding that the lots were purchased for the mother. If they were bought for her by her agent, it must have been without her knowledge or consent that the absolute conveyance was taken to himself, and a finding by the referee to that effect may be inferred as involved in his general conclusion in favor of the plaintiff. (Grant v. Morse, 22 N.Y., 323; Siemon v.Schurck, 29 N.Y., 598.)
Nor does the statute of limitations aid the defendant. He did not until after his mother's death, assume to own the property, or deny her right thereto. Nor did she have knowledge that the deed had been taken in his name. Until the happening of one or the other of these events, no cause of action accrued. She died in 1866, and this action appears to have been commenced in 1867.
The order of the General Term should be reversed, and a new trial denied.
All concur, except ANDREWS, J., absent.
Order reversed, and new trial denied.