NORTON v. MALLORY ET AL., 63 N.Y. 434 (1875)

JOHN B. NORTON, Appellant, v. RUSSELL B. MALLORY et al., Respondents.

Court of Appeals of the State of New York.Argued December 3, 1875
Decided December 14, 1875

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Charles Mason for the appellant.

John J. Van Allen for the respondents.

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CHURCH, Ch. J.

We concur with the General Term, that the title of the defendant Fred. E. Mallory, under the deed of Russell B. Mallory, is valid as against the plaintiff, who at the time of the conveyance was a creditor at large of Russell B. Mallory. The findings of facts, that this land descended to Russell B. Mallory from his mother, in pursuance of an agreement that he would convey it to the defendant, and that she was prevented thereby from making a will devising it to him, in connection with the additional fact that Russell B. Mallory was paid by his mother the consideration for any interest which he might have or expect as the heir of his mother, constituted him a trustee of the land for the benefit of Fred. B., and enabled the latter to enforce the trust in a court of equity. The payment of the consideration creates the trust by implication. It does not depend solely upon the parol agreement, but rests upon the facts in connection with it. And if the mother was induced to forego making a will in favor of her grandson by the promise of Russell B., equity would enforce the obligation on the ground of fraud. (Story, Eq., § 768.) Concurring in the views of the General Term, it is not deemed necessary to elaborate them. We think the principle involved is sustained by the authorities. (33 Barb., 9; 29 N.Y., 598; 47 id., 544.)

But if the trust could not have been enforced, yet Russell B. Mallory having executed it, the title thus made and supported by the equities in the case is paramount to any equities of general creditors. (Id.)

The referee has found that the transfer was made in good faith, and without any intention to hinder, delay or defraud creditors; and this furnishes an additional support to the title. Russell B. was under the highest moral obligation to make this conveyance; and having made it in pursuance thereof, his creditors, especially before obtaining any lien,

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cannot maintain any claim against the title thus obtained. His neglect to perform this duty before cannot impair the defendant’s title. This principle was maintained in favor of a conveyance against a prior judgment in 33 Barbour (supra), and affirmed in this court. (29 N.Y., supra.)

The evidence of Davis was received solely on the question of good faith. That Russell B. was repeatedly urged to fulfill his obligation to convey this land, by a relative of the family, and repeatedly promised to do it, tended to show that the conveyance was made solely for that purpose, and to that extent was admissible; and as I understand the ruling, it was received only to that extent. The source of his information was immaterial. There is no distinction, however, between legal and equitable actions in respect to exceptions to evidence.

The judgment must be affirmed.

All concur; MILLER, J., not sitting.

Judgment affirmed.