(dissenting) :
The question presented by this appeal is whether the oral agreement made between the defendant Josiah E. Titsworth and his wife whereby she agreed to take title to the lands in question and convey the same to him at any time upon his request is énforcible and constitutes him the equitable owner of the lands. The solution óf that question depends upon whether what was done- by the husband under and in reliance upon -the agreement was sufficient to take it. out of the statute requiring such an agreement to be in writing.' . • '
I think we must assume from the proof that was offered and the rulings made that the defendant Josiah E. Titsworth couldi have-established the facts set forth in his answer. It appears that the premises were bid in by Titsworth upon a foreclosure of a mortgage owned by him, lie-paying the consideration of $596.20 therefor, and that at his request -the same were conveyed by the sheriff to his wife under the agreement as stated. - It also appears among other things that he entered into possession of the lands; that his wife never made any claim thereto; that he expended large sums of ' money in clearing and improving the ■ premises, building dwellings and other buildings thereon, and made other . permanent improvements thereon, amounting in all to about $7,000 in value; that he exercised the right of ownership of the lands to"the exclusion of his wife and every other person; that he controlled the same, paid the taxes, leased and disposed of the right to cultivate and received the proceeds thereof; that his wife did not contribute to the purchase price of the premises, or in any way toward the reclamation, cultivation or improvement of the same ; that she never exercised any acts of ownership or control over the premises, and was always ready and willing to reconvey the premises to her husband upon his request; that she died on or about August 3, 1901, without having reconveyed the premises to her husband and without his having made any request to convey the same to him. While she made a will she did not specifically devise the premises or in any manner assume to have any interest therein. The plaintiffs claim their right to the premises under the residuary clause, contained in her will, which gives and bequeaths to her husband all of her estate, both real and personal, during the term of his natural life, and from *558■ and after his deáth gives all the remainder of her estate,- both real and personal, to certain grandchildren, who now seek to hold Tits-worth liable for waste in cutting timber upon the premises.
We agree with the learned, trial justice that there was no resulting trust to the husband from the mere payment by him of the purchase price of the land, and clearly the oral agreement of itself was void under the statute. But the husband does not rest his claim upon the payment of the purchase price and the oral agree- . ment alone. He 'not only paid the purchase price, but he entered into possession of the lands, and has ever since occupied them himself or by his tenants, covering a period of upwards of fifty years. During that time he-made permanent and valuable improvements - thereon, clearing, ditching and constructing buildings, so that the premises whicli were sold on the foreclosure sale for. a fevv hundred dollars have become very valuable. During all this time his claim of ownership was never questioned, until after the death of his wife.
To permit the grandchildren under these circumstances to'invoke the aid of the statute and take from him the savings of a lifetime, would enable them to make a use of the statute which ought not to be permitted. Its purpose was to prevent fraud, not to make it an instrument for perpetrating a wrong. ,
Had- the purchase been direct from the wife, she receiving the -purchase price direct from her husband, and agreeing to convey to him the premises upon demand, would there.be any question that the husband after -talcing possession of the land, making permanent and valuable improvements thereon, and doing what he has done in this . case, could require the performance of that contract ? I can see no difference in principle between such a case and one like this, where the title passes to the wife and is held by her for the purchaser .under such an agreement. In either case the vendee is the equitable owner. '
The case of Gage v. Gage (83 Hun, 362) presents a state of facts very similar to those in this case. In that case it appeared -that the plaintiff and his wife purchased real estate, the title being taken in the name of-the wife under an agreement that the two should live upon the farm, working the same together and paying the purchase price thereof. When paid for the wife was to deed- an' undivided half to her husband. He performed the ¡agreement in working the *559farm and paying for it. For the purpose of depriving him of his interest in the property, she conveyed to a third party without consideration, and the husband thereupon brought the action against his wife arid- her grantee to set aside that conveyance and to require the conveyance of an undivided half to him. The complaint was dismissed at the trial, and an appeal having been taken to the Gteneval Term of the Supreme Court, the judgment was reversed. Mr. Justice Haight, writing for the court in'that case, distinguishes that case from those cases "where there is no agreement between the parties creating a trust, or other equities, 'aside from the bare payment' of the consideration money. As regards the case of Gould v. Gould (51 Hun, 9), he states that it may be in apparent conflict, but that this distinction does not appear to have been called to the attention of the court, or considered by it. The plaintiff ultimately succeeded in the Gage case. It was again before this court and the judgment in favor of the plaintiff was affirmed. (13 App. Div. 565.) The cases of Smith v. Balcom (24 App. Div. 437) and Jeremiah v. Pitcher (26 id. 402) are also very similar to this case, and contracts of a like character were upheld.
It does not seem necessary, or profitable to. enter into an extended discussion of the various decisions in this State upon -this question. I think the evidence offered was improperly excluded and that the defendant should have been permitted to make proof of the agreement between himself and his wife relating to the lands in question, and other facts set forth in the answer. If I am right, it follows that the judgment and order should be reversed and a new trial granted.
' McLennan, P, J-., concurred.
Judgment and order affirmed, with costs. -