This action was brought to have a deed of certain real estate in the city ..of New York, executed by the father and mother of the plaintiff to the defendant, the Church of St. Mary, declared a deed of trust for the plaintiff and to set aside a deed from the church to the defendant Corvin, and to compel her and the church to account for the proceeds of a certain mortgage; also, for certain rents, issues and profits. The defendants had a judgment dismissing the complaint, from which the plaintiff has appealed.
There is little dispute as to the facts. The judgment is attacked mainly upon the ground of errors alleged to have been committed by the trial court in excluding certain testimony. The conceded facts are fully set forth in the opinion delivered by the learned justice sitting at Special Term, from which and the evidence in the case it appears that in March, 1874, the plaintiff — an only child — and then over twenty three years of age, deposited to her credit in two savings banks in the city of New York the sum of $1,385 ; that in 1875 she drew this money from the banks and gave it to her father, Patrick J. Corvin, in pursuance of an understanding that he and her mother, Mary Corvin, would purchase a house for a home where they would all live until the death of her parents, and at
It also appeared that the plaintiff was married to Martin J. Leary in 1874, and soon after the purchase of the premises they commenced to and -at different intervals between that time and 1890 did occupy a portion of the house for which rent was paid; that there were misunderstandings between the plaintiff’s husband and her mother; that during this time the plaintiff used intoxicating liquors to such an extent that she spent much time in a sanitarium for the purpose of having such habit cured or corrected.
In 1890 the father and mother of the plaintiff conveyed the premises to the defendant, the Church of St. Mary, for a nominal consideration, the church, for a like consideration, reconveying to them and each of them an estate for life. On the 20th of December, 1892, the church, pursuant to a resolution of its board of trustees, applied to the Supreme Court for leave to sell the premises to the defendant' Lizzie J. Corvin, then Lizzie J. Hearly, for the expressed consideration of $14,500. The application was granted, and an order made permitting the sale to be made, and the church on the twenty-second of December executed a deed of conveyance to her of the premises in question. On the same day that this deed was executed Patrick J. Corvin released, for a nominal consideration, to Lizzie J. Hearly his interest in the premises, and she thereupon mortgaged the same to certain parties for the sum of $6,000 — $1,000 of which she retained and the other $5,000 she gave to the church — which was all the church received for the transfer.
Upon the trial the plaintiff testified that just before the deed was given to the church she was called into a room in which were her mother and Father Hughes,- who was the pastor and also the. treasurer and one of the trustees of the defendant church, and that her mother then said to Father Hughes, “ This is my only child; this is the one that I want the property held in trust for by the church.” This testimony was subsequently stricken out by the court'— to which the plaintiff took an exception — and this is the first error alleged on the part of the appellant as calling for a reversal of the judgment. We are of the opinion that this testimony was properly, stricken out. It was not admissible under section 829 of the Code of Civil Procedure. It was, under the circumstances, the same as though the-plaintiff had participated in the conversation. (Matter of Bernsee, 141 N. Y. 389 ; Matter of Dunham, 121 id. 575; Matter of Eysaman, 113 id. 62; Holcomb v. Holcomb, 95 id. 316; Burnham v. Burnham, 46 App. Div. 513.) Flor did the court err in excluding testimony as to declarations made by Patrick J. Corvin after he had conveyed the premises to the church. Declarations or. acts of a grantor, made subsequently to his grant, cannot be received to the prejudice of his grantee’s rights, or persons claiming, under them. ( Williams v. Williams, 142 N. Y. 156 ; Sanford v. Ellithorp, 95 id. 48; Vrooman v. King, 36 id. 477; Jackson v. Aldrich, 13 Johns. 106; Padgett v. Lawrence, 10 Paige, 180.)
We are, however, of the opinion that the court erred in striking out the testimony as to declarations made by Patrick J. Corvin prior to the conveyance to the church. The witness Galvin testified that she had a conversation with the father and mother of the plaintiff in January, 1886. She was then asked the following -question : Q. Will you tell ns what the conversation was then, with Mr. and Mrs. Corvin in your presence, respecting the purchase which had
All of this answer was subsequently stricken out and the plaintiff excepted. We think the ruling of the court was erroneous and necessitates a reversal of the judgment. It was very material testimony as bearing upon the plaintiff’s claim, and if believed by the trial court tended in no slight degree to establish the allegations of
deriving title through or from him,” and yet, notwithstanding this view, as appears from the record before us, all of the testimony relating to these declarations was stricken out and an exception given to the plaintiff. If the father had been living, and a defendant in this action, no one would seriously contend but that the testimony would have been competent as against him, and whenever the admissions of one having or claiming title to real estate would thus be competent against him, they are equally competent against all persons subsequently deriving title through or from him. (Chadwick v. Fonner, supra ; Jackson v. Bard, 4 Johns. 230; Pitts v. Wilder, 1 N. Y. 525 ; 1 Greenl. Ev. §§ 109-110.)
. It was, therefore, competent to prove these declarations against the defendants. This testimony, as before indicated, was very material. It bore directly on the issue involved and should have been considered by the trial court. If it be true that the plaintiff gave to her father money which was used by him in the purchase of the premises referred to in the complaint, under the agreement indicated in this testimony, then she has rights in that property as against all except bona fide purchasers for value, without notice, which a court of equity will recognize and enforce — certainly to the extent of the money advanced, together with interest thereon.
We are of the opinion that, on account of the error thus committed, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Yak Brunt, P. J., and Hatch; J., concurred; O’Brien, J., dissented.'