There was evidence tending to support all the findings of fact made by the referee, and we do not see any occasion to disturb the report in respect to the facts found.
It must be assumed that the parol agreement in.respect to the lands was void at law and in equity. (Wheeler v. Reynolds, 66 N. Y., 236 ; Morrill v. Cooper, 65 Barb., 519; Lathrop v. Hoyt, 7 id., 59.)
If the plaintiff’s case rested alone upon a parol promise to hold the property until the youngest child of his father should become of age, and then convey it to the children, we should be called upon to say that a court of equity had no jurisdiction to give relief, and that on the law side of the court the plaintiff was without remedy. Such seems to be the doctrine of the cases already cited.
. The same principle is declared by Osborn, J., in Hurst v. Harper (14 Hun, 282). That latter case is pressed upon us by the learned counsel of the appellant as decisive of this case. But we think *71that case differs from this in one or two important particulars. In that case the plaintiff had purchased the property, and put the title in Harper, for some purpose not clearly defined. “ There was no evidence of any agreement to re-convey.” It was held, therefore, that the statute of uses and trusts forbade the granting of any relief ‘in that case, and that the plaintiff having furnished the money to pay for the lands and taken the title to them, in Harper, she acquired no interest in the land nor in the surplus arising from the sale thereof upon a mortgage.
In the case before us it clearly appeal’s from the -finding of the referee, that Moyer, senior, was aware that his death was near at hand, and that he understood that if he died intestate the farm owned by him would descend to his thirteen children, subject to the dower right of his wife, and that he was aware that it would pass immediately upon his death to his heirs-at-law.
Having helped the older children some, it was not supposed equitable that the property should thus pass, and he desired to have it kept together as a home for his widow and the younger children until the majority of the youngest child. He so stated, and asked the defendant if for such purpose he would take the title and convey it over, upon the happening of the majority of the youngest child. The defendant assented to the arrangement, recognized it after his father’s death, and allowed the widow and her youngér children to remain in possession until 1873, soihe fourteen years, without making any claim to the contrary. They made some substantial improvements, and made expenditures upon the lands, paid the taxes thereon, and kept down the interest upon the $1,500, in the faith that such agreement was to be kept and fulfilled by the defendant. Without such an agreement, it must be assumed that the defendant would not have received the title to the lands, then worth some $3,500, subject to the .mortgage of $1,500. If the defendant was allowed to take possession and title to the lands and hold the same, discharged of any interest therein of his brothers and sisters, having paid nothing therefor, he would accomplish a fraud. To prevent such fraud, equity may take jurisdiction.
In Wheeler v. Reynolds, supra. Earl, J., says, “ But in *72cases of fraud, courts of equity will sometimes imply a trust, and will treat the perpetrator of the fraud as a trustee ex maleficio, for the purpose of administering a remedy against the fraud. For the same purpose it will take the trust which the parties have attempted to create and enforce it, and in such a case th % fraud, not the parol agreement, gives the jurisdiction.” This comports with the doctrine of Ryan v. Dox, 34 N. Y., 307, and with Cipperly v. Cipperly, 4 Sup. Ct. (T. & C.) 346, and cases there cited. The ground stated for the jurisdiction of the court is likewise stated in Freeman v. Freeman, 43 N. Y., 35; and in that case a promise to give a life estate in the lands, which had been relied upon by taking possession, partially clearing the lands (as in this case) and making other improvements, was enforced “to prevent a fraud from being practiced.” Grover, J., delivered the opinion in the case last cited, and also the opinion of the court in Levy v. Brush, 45 N. Y., 589, and in distinguishing the case then before the court from the principle enunciated in Ryan v. Dox, supra, and in Freeman v. Freemam, supra, he says: “ But where the party seeking performance has partly performed, or has, as in the case of Ryan v. Dox, parted with valuable property upon the faith of the contract, the case is different. In such cases equity will noi permit a party to retain property obtained on the faAth of a verbal contract to consummate a fraud by retaining the property and refusing to perform the contract!
Potter, J.,in Foote v. Foote (58 Barb., 258), reaches a similar conclusion, and declares that the sixth section of the statute relative to fraudulent conveyances (2 R. S., 134, § 6) has no application to such a case, and that resulting trusts are excepted from their nature from the provisions of the Revised Statutes as to uses and trusts.
When Foote v. Bryant was affirmed in the Court of Appeals (47 N. Y., 547), Church, Oh. J., said: “Implied trusts, or those arising by operation of law, are not ind/uded in -the prohibition ” of-the sixth section of the Revised Statutes; and he adds: “ This statute does not preclude a party from establishing any implied or resulting trust known or recognized by the common law.
*73“ They arise usually from the acts or relation of the parties to the property involved, and not upon parol agreements. . . .
“ The transactions on which a trnst of this character arises may be proved by parol, but the trust itself must rest upon the acts or situation of the parties as proved, and not merely upon their declarations. The statute embraces only trusts which a/re created or declared by thq parties’’
Consistent and similar doctrine was stated by Bookes, J., in delivering the opinion of the General Term of the Fourth District in 1868, in Hobbs v. Weatherwax (38 How., 385), and by Johnson, J., in Carpenter v. Ottley (2 Lans., 451; see Hensler v. Sefrin, 19 Hun, 564.)
The authorities quoted, happily, lead ns to sustain the judgment in this case. It would be a sad. commentary upon the justice of the law if we were obliged to apply a statute passed to prevent fraud and perjuries to a case like this, and defeat the object of an afflicted man about to leave the world, and anxious to provide equitably for those dependent upon him and his little accumulations, and reverse his intent to fulfill “ the moral obligations of a parent to provide for his children,” as Story expresses it in section 1,203 of his Equity Jurisprudence.
There was no error in admitting the oral' evidence of what took place in the sick room of the father when he caused the deed to be delivered, and gave directions for, as well as' advanced, the rnonev to pay for its recording. Nor was there any error committeu in excluding the defendant from testifying to what took place in the .presence of his father on September 16, 1859, in relation to the delivery of the deed. It involved a personal “ transaction or communication between the witness and the deceased person,” his father, “ from, through or under whom ” he derived his interest or title. (Kraushaar v. Meyer, 72 N. Y., 602; Fisher v. Verplanck, 17 Hun, 151; Titus v. O’Connor, 18 Hun, 373; § 829, Code Civ. Pro.; Pursell v. Fry, 19 Hun, 595).
The conclusion reached by the referee accords with equity and justice, and the judgment entered upon his report should be affirmed, with costs.
*74Talcott, P. J., and Smith, J., concurred.Judgment affirmed, with costs.