(dissenting):
I think the plaintiff proved facts from which the fair inference arises that the defendant agreed to take title to the real property in question and hold it for the benefit of the decedent Ilalk. If there was in fact such an agreement thé law will not permit the defendant to shield his fraud in refusing to convey or to account for the proceeds under the plea of the Statute of Fraud's, (Jeremiah v. Pitcher, 26 App. Div. 402; affd., 163 N. Y..574; Church of St. Stanislaus v. Algemeine Verein, 31 App. Div. 133; affd., 164 N. Y. 606; Ryan v. Dox, 34 id. 307.) From the nature of the case the plaintiff was unable to- adduce the most positive evidence or to *695prove an express agreement. She did prove, however, that the decedent was not living with his wife, having had such trouble with her that he at least thought she would not sign a deed in case he wanted to sell. When the deceased bought the property and paid all of the consideration therefor, he told the agent who was negotiating the sale to him that he wanted title taken in the defendant’s name for some reason which he did not disclose. That reason was proved by another witness to be his unfriendly relations with his wife. The defendant and the deceased were on confidential terms. Decedent in placing the title in defendant’s name, was not endeavoring tó defraud his creditors and there is no evidence of any express purpose on his part to actually give the property to the defendant. In view of the circumstance of the confidence which the deceased reposed in the defendant and of his unfriendly relations with his wife which caused him to believe she would not sign a deed in case he wanted to sell any or all of the lots, and the absence of proof of any express intent to give the lots or their purchase price to the defendant, I think a fair-inference arises that the defendant agreed with the decedent to take title to the real property and hold it for him. At least, there was such prima facie evidence of such an agreement that it became the duty of the defendant to clear himself by showing that no such agreement existed and that he was entitled to hold the property or its proceeds, and this he failed to do.
In Church of St. Stanislaus v. Algemeine Verein (supra) Van Brunt, P. J., says: “ It seems to be a well-settled rule of law in this State that unless it appears that the person paying the consideration has consented to an unconditional and absolute conveyance of the property to another without any recognition or intimation in respect to his rights, the statute in question will not protect the attempted fraud; and it is further held that no presumption can be indulged in to support such a defense. (Schultze v. Mayor, 103 N. Y. 311.)”
The plaintiff by her proof certainly made it appear that something further transpired between the defendant and the deceased than the mere paying of the consideration by him and his consenting to an unconditional and absolute conveyance of the property to the defendant without any recognition or intimation in respect to his own rights. On the contrary, the proof shows that he, at least, *696attempted to retain some rights in the property and supposed that he had.
, Except for the fact that the proof was explicit, whereas in .the case at bar it only raises a presumption which is just as good in law, the case of Jeremiah v. Pitcher (supra) is on all fours with the present one. In that Case, because of the insanity of his wife who, -therefore, could not sign a deed, a man paid the consideration and took title in his daughter so that he might convey the property if he saw tit, without being embarrassed by the absence of his wife’s signature. The court held that the daughter could not retain the property under such circumstances and directed a judgment declaring that it was held in trust and directing' a reconveyance. Fagan v. McDonnell, No. 1 (115 App. Div. 89; affd., 191 N. Y. 515) is not controlling. That case turned upon the fact that the person paying the money, by repeated acts, and refusal to accept a deed tendered, clearly indicated that he intended to relinquish all rights to the property to the person in. whose name he had caused the deed'to be made
It was certainly competent to prove what the deceased-said to the" person from whom and through whom lie bought the property, with respect to how" the deed should be made, and it was also competent to prove that the reason Why the deceased did not himself take title was his unfriendly relations with his wife. Very much could be said with respect to the competency of the other declarations of the. deceased and his acts toward the property after title had been placed in defendant’s name, as casting light upon his exercise or attempted exercise of ownership. The property was vacant and he could not occupy it, and it is not at all clear to my mind that what he said and did while viewing the property or passing by it was not competent evidence. Assuming, however, that it was incompetent and that the learned trial court improperly permitted such declarations in evidence, such ■ error, if error- there was, is not sufficient to reverse the judgment. The action is in equity and the defendant proved no defense at all, and if any error was committed in this respect it could have done no harm.
I think the judgment was right and that it should be affirmed.
Judgment reversed and new trial ordered, with costs to appellant to abide evént.