Gallagher v. Gallagher

Ingraham, J. (dissenting):

In this action the plaintiff seeks to recover the possession of twp pieces of real property which he had caused to be conveyed to the defendant, his wife. The complaint .alleges that plaintiff conveyed this property to his wife to enable her to qualify as a bondsman to release a mechanic’s lien upon certain moneys due to him by the dity of Hew York and for no other purpose; that such conveyance ivas made under an agreement whereby the defendant agreed, with, the plaintiff that if plaintiff would transfer such real property to her- she would hold the title in trust for him and would convey the-property on demand of the plaintiff to any person ■ or persons to whom plaintiff would sell the same,- and would immediately turn over the proceeds of such sale to the plaintiff, and that in case the plaintiff should not sell the premises this defendant would then on demand of the plaintiff convey the said premises to the plaintiff or to any person to whom the plaintiff directed her to convey said premises ; that the plaintiff never intended to convey said premises to the defendant other than as stated; that subsequently and before the commencement of the action the plaintiff-requested and demanded of the defendant that she convey the premises to the, plaintiff personally, which-she has refused to do. As to the'second piece of property it was conveyed to the defendant by third parties *465and the complaint alleges that the plaintiff had been the equitable owner of these premises; that the defendant entered into an agreement by which she agreed to hold the property in trust for him; would qualify as bondsman if necessary on bonds required by him, and would convey the said premises on demand to any person or persons to whom the plaintiff would sell the same or would on demand of the plaintiff convey the premises to the plaintiff; that relying on such promise and agreement hé capsed the property to be conveyed to the defendant by one McKew and wife. Those several conveyances were fully recorded and the defendant became the record owner of the property. The court found that the plaintiff and defendant entered into an oral agreement whereby the plaintiff agreed to convey to the defendant certain real property in the city of Hew York and. placed the title in the name of the defendant for the purpose of enabling the defendant to qualify on plaintiff’s bond as surety for contract work and as surety to bond liens and judgments whenever the same might arise in the conduct of the plaintiff’s business; that after the bonds upon which the defendant was surety were satisfied the defendant would convey all of the premises so conveyed to her back to the plaintiff or to anybody he might name upon plaintiff’s demand. It is not claimed that this contract was in writing or that there was any writing between the parties by which the defendant agreed to hold the property in trust for the plaintiff or to reconvey the property to the plaintiff upon his demand. There is no fraud found nothing but a conveyance by a husband to his wife of real property which concededly vested the legal title in her, with an oral agreement that the wife should convey the property back to the husband upon demand.

Assuming that these findings are sustained by the evidence the court lias here attempted to specifically enforce an oral agreement to convey land, and unless we are to repeal the statute it seems to me that this judgment cannot be sustained. By section 201 of the former Real Property Law (Laws of 1896, chap. 541) it is provided that “ An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in'any manner relating thereto, can not be created, granted assigned, surrendered or declared, unless by act *466or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, [assigning, surrendering or declaring the same, or by his lawful agent, .thereunto authorized by writing.” And this provision is re-enacted as section 242 of the present Real Property Law (Consol. Laws, chap. 56Laws of 1969, chap. 52). And by section 224 of the former Real Property Law it is pror vided -that “ A contract for the leasing for a longer period than one-year, -of for the. sale of; any real ¡Property, or an interest therein,- is void',-unless the contract, or some note or memorandum thereof,-, expressing the'consideration, is in writing, subscribed - by -the lessor or grantor, of by'his lawfully authorized agent.” And this provision is re-enactéd as section 259 of the present Real Property Law. And by- section 74 of the-former Real Property Law it is provided that “ A grant Of real property for a valuable consideration, to one person, the consideration being paid by another, is presumed fraudulent as against the creditors, at that time, of the person paying the consideration, * * • * -but the title vests in the grantee, and no use or trust results from the payment to the person paying the consideration, or in his favor, unless the grantee either, 1. Takes the same as .an absolute conveyance,,- in his- own name, without the consent of knowledge Of the person paying the consideration, or, 2. In violation of some trust, purchases the property so conveyed with money or property belonging to another.” And. this provision, is re-enacted as section 94 of the present Real Property Law. It seems to me that these provisions expressly prevent the enforcement of an oral trust in real property or an oral agreement to convey real property, and in the absence of fraud of which there is neither a finding nor proof the court is powerless to aid the plaintiff.

The exact question presented in this- case was presented to the General Term in the Second Department in McCahill v. McCahill (71 Hun, 221). ' There is ■ no case cited which sustains this judgment.' -It seems to me that-such an oral contract in the absence'of fraud -cannot be enforced without disregarding the statute. -

I,'therefore; think the judgment should be reversed.

Scott, J., concurred.

Judgment affirmed, with costs.. -