dissenting :
The plaintiff, and Frederick II. Bissell and Edwin A. Bissell, then co-partners, entered into a verbal agreement for the purchase of a farm, in the name of Frederick ll. Bissell only. The farm was purchased and the title taken in his name by their mutual agreement. Part of the farm was sold, and the avails were applied on the purchase-price. The balance of the purchase-price was paid by these three persons, each paying one-third. Part of the farm was exchanged for a building lot, and the title to the lot was, by verbal agreement, taken in the name of Frederick II. Bissell only. With partnership moneys the parties built a house on this lot. Subsequently the plaintiff dissolved his partnership with the other two partners. lie verbally retained his interest in the house and lot, and in the unsold part of the farm. There was never any agreement, verbal or otherwise, on the part of Frederick II. Bissell, to convey to the plaintiff any part of the farm or of the house and lot.
The plaintiff relies very much on two cases. Chester v. Dickerson (54 N. Y., 1) was a case based on alleged fraud'in regard to *87the purchasing of land. As the court say, it was “ not a controversy about the title to any of the lands taken, or owned, by the partners, but it simply relates to the conduct of the defendants while they were acting as partners.” The most that can be said is that the learned commissioner was inclined to think that the doctrine, on which the present plaintiff relies, was founded on the best reason and the most authority.
Traphagen v. Burt (67 N. Y., 30) was an action to establish the right of the plaintiff to an undivided interest in land where the plaintiff and defendant had jointly purchased, and the defendant, ivithout knowledge of the plaintiff, had procured the deed to be taken to himself. That case is provided for in 1 R. S. (m. p.), 728, §§ 52 and 53. The defendant had committed a fraud.
But in the present case there was no fraud. By the agreement of the parties, the title was intentionally taken in the name of Frederick H. Bissell. If, by such an agreement, he could hold the title, and the others could have estates in their portions, then it would follow that, by a similar agreement, he might hold the legal title, and others have the whole beneficial estate.
Carr v. Carr (52 N. Y., 251) is but the affirmance of the well-known doctrine that a deed absolute on its face may be shown, by parol, to be a mortgage.
The language of the statute is very broad. “ No estate, or interest in lands # # # shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed,” etc. One cannot, then (as these parties attempted to do), create or declare an interest in land by parol. A declaration of trust must be in writing. (Section 7, amended by Laws 1860, chap. 322; Wheeler v. Reynolds, 66 N. Y., 227.)
No question arises here as to the creditors of a partnership, or as to their right to follow partnership money invested in land. Nor is there any question as to a settlement of a partnership business; for the partnership had been dissolved. Nothing remained but a verbal agreement that the plaintiff should have one-third undivided interest in land, of which the legal title was in Frederick H. Bissell.
And the question must be whether the court can enforce, as a title to land, a mere verbal agreement for an undivided third *88thereof. If it can, then it could enforce a vei’bal agreement for the whole.
• I think the judgement should be affirmed, with costs.
Judgment reversed; new trial granted; reference discharged; costs to abide event.