This is an action to determine claims to real estate. It seems the plaintiff's father purchased the property for $3,500, subject to a mortgage for $1,800. He paid the purchase money, and had the deed executed to this defendant as sole grantee. By the terms of the deed, the grantee assumed to pay the mortgage. The deed and possession of the property were delivered to the purchaser, and held by him until he died, on August 12,1885. After his death, the defendant obtained possession of the deed from a son, and the same was recorded. The only question necessary to- be determined is whether these facts bring the case within the statutes. 3 Rev. St. (7th Ed.) 2181, p. § 51. It is claimed by the appellant that the defendant, if he took it at all,' received the land in trust for the purchaser, and that to permit the defense by the statute would use the law to perpetrate a fraud; and he cites Foote v. Bryant, 47 N. Y. 544; Carr v. Carr, 52 N. Y. 260; Church v. Kidd, 3 Hun, 265; and Ryan v. Dox, 34 N. Y. 307. The first case simply holds that it is lawful for the trustee who has received a conveyance, where another party has paid the consideration, to recognize the equity, and make a declaration of trust or a conveyance. The case of Carr v. Carr decides that the statute referred to does not change the relations of the parties, and applies the familiar doctrine that it is competent to show a mistake in a written instrument, or that a deed absolute on its face was in fact a mortgage. The case of Church v. Kidd is not in point, as the relations of the parties were established by writings, and the cestui que trust had an interest in the property to be protected previous to the conveyance being made. The relation of the parties was that of mortgagor and mortgagee. The case of Ryan v. Box was also one where the plaintiff had an interest in the property which was about to be sold under a decree of foreclosure, and the defendant agreed to attend the sale, and buy the property for the plaintiff, and take the deed in his own name for security only, and, relying on this agreement, the plaintiff agreed he would procure no other friend to attend the sale, and the property was held at a price greatly below its value. In this case the deed was simply a mortgage, and the defendant was assuming to act as agent of the plaintiff. There is also another line of cases where the statute does not apply, where the title is taken in the name of a third party without the knowledge of the party who furnishes the consideration. This point was also decided in the case of Foote v. Bryant, supra. The case of Everett v. Everett, 48 H. Y 218, is decisive of the case at bar. That case holds that where one purchases land, and at his request the same is deeded to another, although the purchaser receives the deed without disclosing the existence thereof to the grantee, and takes and retains possession of the land, yet by the deed the title passes, and becomes vested in the grantee, and, under the prohibition of the statute of uses and trusts, no trust results in favor of the purchaser. See, also, Gilbert v. Gilbert, 40* N . Y. 159; Niver v. Crane, 98 N. Y.40; chapter 322, Laws 1860; 3 Rev. St. (7th Ed.) 2326; Sturtevant v. Sturtevant, 20 N. Y. 39.
We think the defendant, on the facts, was entitled to judgment, and the same is affirmed.