(dissenting):
I cannot concur in the conclusion reached by Mr. Justice Rumsey. ■The plaintiffs were not entitled to a. judgment directing the specific performance of the contract of sale unless the title which they -tendered was in fact a good or marketable one. . A good or marketable title is one which a person of reasonable prudence and caution would purchase or accept as security for the payment of money loaned. (Moore v. Williams, 115 N. Y. 591. See, also, Ruess v. Ewen, 34 App. Div. 484, and cases there cited.) Would a person .of reasonable prudence and caution accept this title ? It seems to me not. The record title is not in the plaintiff, it is in one “ George ¡Henry Thaule, as trustee ” of plaintiffs, “ sometimes heretofore Improperly designated ‘administrator’” for them. The habendum Manse of the deed is “to have and to hold all and singular the premises _ * * * unto the said party of the second part, and .assigns, to his and their only proper use, benefit and behoof,” It is true that this deed to Thaule, as-trustee, does not of itself .create a valid trust within the statute, or define the extent or .duration of the duties of the trustee, but that could have been .done by a separate" instrument. The statute prescribes no particular form by which a trust in land may be created or declared .except that it shall be by deed or conveyance in writing and subscribed by the parties creating or declaring it. It may he contained -jn the recital of a conveyance to which the trustee and the cestui que trust are parties, or it may be by another instrument. It is not •even necessary that the trust should be expressed upon the face of •the conveyance itself, or mentioned or referred to therein, to bring -the. case within the statute, but it is sufficient to answer all the *173requirements of the statute that the trust actually exists, and that fact may he established by another instrument. (Wright v. Douglass, 7 N. Y. 564.) While-the recital in the deed to Thaule is-insufficient to create a valid trust, nevertheless it is a sufficient notice if such trust does in fact exist, no matter when or hov/ created. It is sufficient to put a purchaser upon his guard, and if such a trust does in fact exist it would be binding upon him, and he.would make his purchase subject to it. Before the defendant could be expected to take title it was incumbent upon the plaintiffs to show that the trust never, existed, or, if so, that if had been terminated. This they failed to do. In other words, the burden was upon them to show that Thaule as trustee did not at the time the contract was made or at the time of the trial have any interest in the lands contracted to be conveyed, and they having failed to negative that possibility, I do not think the title ivas a marketable one. (Simis v. McElroy, 160 N. Y. 156.) With the possibility of a claim of this character at some time being asserted, the title cannot be said to be a marketable one which a reasonably prudent man would purchase, or which he would accept as security for the payment of money loaned. For these reasons I think the judgment should be reversed.
Van Beunt, P. J., concurred.
Judgment affirmed, with costs.