The complaint shows that in March, 1888, the plaintiff conveyed his Newfield farm to his father upon a secret trust, the title to be conveyed to the plaintiff upon request, and that the father, in August, 1888, conveyed the farm, without the plaintiff’s knowledge, to his son S. Alfred .and his brother upon condition that they would observe the trust, they having knowledge of all the facts and the plaintiff being in possession of the farm. In March, 1900, the plaintiff arranged to trade the farm for the Tioga county farm, and his brothers agreed to convey it to the owner of the Tioga farm, and the latter was to convey that farm to the plaintiff. Said S. Alfred Seely looked after the business in causing the deeds to be made, and represented to the plaintiff that the deed had been made to him and that he was retaining it in his safe for plaintiff. This statement was false, as the deed was made to the wife of S. Alfred, who was acting in collusion with her husband and knew all the facts, and received it either to defraud the plaintiff or charged with carrying out the trust. Relying upon the fact that the deed was in his name the plaintiff agreed with S. Alfred that he might cut from the farm the growing timber thereon if he would build a new barn upon the premises, fix the fenpes and repair the place, which he was doing at the time of his death, and the work was continued by the defendant, his widow, thereafter. The defendant recently sold the farm to a purchaser in good faith, when she ascertained that the plaintiff was about to bring an action to impress a trust thereon, and that by her fraudulent acts plaintiff has’been damaged $4,000. These allegations being admitted, the plaintiff is entitled to some relief. *652The facts show that as against the defendant the plaintiff was the equitable owner of the farm, to her knowledge, and that she recently conveyed the farm to a purchaser in good faith for the purpose of depriving him, of his rights therein. The fact that the deeds were recorded gave them no additional force as against the plaintiff. A recorded deed under the Recording Act is constructive notice to subsequent purchasers and incumbrancers. It is no notice to the owner in possession who does not claim title through any party to the deed. There is nothing in the complaint to indicate that the plaintiff had knowledge that the deed was not in his name as agreed until the defendant sold the farm. The Statute of Limitations must he raised by answer. In the complaint the plaintiff need not anticipate the plea of the statute and need not state facts or circumstances which may avoid the effect of the plea if made. Affirmative matters alleged in the answer not as a counterclaim are deemed controverted. Upon an application by defendant for judgment upon the pleadings the facts stated in the complaint are deemed to be true, and affirmative defenses set up in the answer, otherwise than as a counterclaim, cannot aid him.
In any event, taken in its most favorable aspect to the pleader, the inference is present that the plaintiff had no knowledge that the deed stood in the name of the defendant until she was about to sell the farm. The complaint shows facts tending to show that the plaintiff could have impressed a trust upon the farm in the hands of the defendant, but that by her recent action in selling it to a purchaser in good faith he is precluded from resorting to the land but seeks to follow its proceeds. The action is equitable in its nature, and the mere fact that the complaint demands a money judgment under the circumstances does not change the nature of the cause of action. Murtha v. Curley (90 N. Y. 372) is direct authority upon this question. As was said in Valentine v. Richardt (126 N. Y. 272) under quite similar circumstances: The plaintiff is asking the money compensation “not as damages but as a substitute for the land itself.” The case, therefore, falls within subdivision 5 of section 382 of the Code' of Civil Procedure, and the Statute of Limitations does not begin to run until the discovery *653by the plaintiff of the facts constituting the fraud. (Lightfoot v. Davis, 198 N. Y. 261.)
We are not considering the probability of the plaintiff’s recovery; we only hold that in the manner in which the case was presented to the court, the allegations of the complaint being admitted, the plaintiff is entitled to relief.
The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Woodward, J., dissenting in opinion.