Practice Reports in the Supreme Court and Court of Appeals

A and B were men of intelligence, education and wealth, and fast, mutual and confiding friends. A became involved, and very much feared, by the pressure of some of his creditors, that his valuable real estate (worth some $11,000) would be sacrificed. On consultation with B, it was agreed that B should, through a third person, a stranger to A, but a friend of B, purchase A's property for B's wife's sister, a single lady of wealth. The conveyances were made, the consideration $10,650, ostensibly paid by B, for his wife's sister, to the third person for A, and the conveyances delivered, and the first conveyance (from A) immediately recorded; but the deed from the third person to B's wife's sister was not recorded for more than two years afterwards. B took possession of the premises, received the rents for years thereafter, and, during the time, made improvements at an expense of many thousand dollars, by or on behalf of his wife's sister, who subsequently became the wife of B

A having succeeded, in a great measure, in averting the storm of litigation which he apprehended from his creditors, by assurances to them in different forms that said conveyance made by him was bona fide and in good faith, subsequently requested a reconveyance of the property from B's wife's sister, the grantee; which reconveyance appeared to have been executed and delivered to A, and remained in his possession some eight months, when, by some unexplained circumstance, it came into the possession of B, where it was last seen. A difficulty arises between B and his wife and A, and A brings his action against them to recover back or be restored to this reconveyance. Held, that by the pleadings, and the testimony upon the trial of the cause, it was established beyond doubt that A and B were the only real parties to the transaction respecting the conveyances from A to the third person, and from the latter to B's wife's sister; that no money, in truth, was paid as a consideration VOL. XIV.

Moore agt. Livingston and wife.

of the purchase, and that the property was, in effect, placed under B's control, and as a mere cover. It was a gratuitous secret trust for the benefit of A. If the case rested here, whatever might be its moral merits, or its merits tested by the code of honor among men, in law, it would admit of but one result. No man, creating a secret trust to defraud the law, can call upon the law to relieve him from the consequences of such misplaced confidence. His act is a misdemeanor-not in himself only, but in every person being a party or privy to the conveyance, or knowing of it, who shall willingly put the same in use, as having been made in good faith. Yet, as between the parties, the conveyance is valid; and the title vests in the person named as alienee, subject only to the rights of creditors at the time; and as against them it is void. The fraudulent grantor is estopped by his own act.

It appeared, however, from the weight of testimony, that a deed of reconveyance to A was actually executed by B's wife's sister previous to her marriage, and delivered; that, as a muniment of title, it lawfully became and was A's property; that B subsequently, in some way unexplained, repossessed himself of the instrument, and wrongfully withholds it. Therefore, held, that A is entitled, lawfully as well as justly, to a decree for its restitution, and for an account of the rents and profits.

As between A and B, there was an implied promise, and a high moral and honorary obligation on the part of B to give such reconveyance. It was not for B to vindicate the law. By his own showing, although particeps criminis, he was the friend of A. He had paid nothing, and was to pay nothing for the property. It was a mere naked trust-fraudulent as against the policy of the law, but binding in "friendship" as between persons equally guilty. The law was violated, but B violated it as much and as knowingly as A. He should not, therefore, in a case of any doubt, be permitted to profit by the wrong. The dignity of the law, in a doubtful case, will be better satisfied by restoring the property to its real, if not its technical owner, than bestowing it as a reward for what cannot but be regarded as gross private teachery, unqualified by any pretence, even of disinterested public service.

New-York Special Term, March, 1857.

MOTION by plaintiff, after trial by the court, for judgment or decree, restoring to him a reconveyance of real estate, &c.

FRANCIS G. YOUNG & JAMES T. BRADY, for plaintiff.
M. PORTER & CHARLES O'CONOR, for defendants.

ROOSEVELT, Justice. In examining this case, I have felt myself compelled, by the evidence, to regard it as a controversy between Livingston and Moore exclusively. The successive wives of the former, whose names have been introduced

Moore agt. Livingston and wife.

into the transaction, appear, for reasons which I shall hereafter explain, to be, and to have been throughout, merely nominal parties.

The suit, in its consequences, involves the title of a valuable property in Broadway and Cortlandt streets, which, it is conceded, at one time belonged to the plaintiff, Dr. Moore, but which (having put it out of his hands to defeat the claims of creditors) he cannot, in law, recover back, unless by showing some exceptional circumstances, exempting him from the application of the rule, that no man defying the law can invoke the law to aid or to extricate him. The plaintiff accordingly sets up a reconveyance, once in his hands, and now in the defendants, and has sought to prove its execution and delivery, which the answer denies. And the question is the main and only ultimate question to be determined-was the alleged deed of reconveyance ever executed? or, in other words, was there at any time such an instrument, or any instrument of like import, in existence, executed by the defendants, or either of them, to the plaintiff, the possession of which the defendants have obtained and wrongfully withhold?

Moore, in his complaint, which was put in under oath, not only alleges the execution and delivery of the instrument, and his actual though temporary possession of it, but specifies minutely its character, contents and attending circumstances.

It was dated, he says, on or about the 1st September, 1845; the grantor's name was Eliza Blackwell, then the sister-in-law, now the second wife of the defendant Livingston; the grantee was himself, Michael Price Moore, the then friend, now antagonist of Livingston; the consideration was $11,000; the premises one undivided half of lots Nos. 104 Broadway and 52 Cortlandt-street, giving the dimensions of each; the date of the acknowledgment on or about the 1st September, 1845, and the name of the commissioner, Dayton Hobart.

These averments, as already observed, are not made on mere information and belief: for the plaintiff, in addition, alleges that the conveyance, after its due execution and acknowledgment, was "delivered by the defendant Eliza Blackwell to the

Moore agt. Livingston and wife.

plaintiff," and remained in his possession for a period of "upwards of eight months." Nor is this all; "the consideration," which, it will be recollected, was the very considerable sum of eleven thousand dollars, was, he alleges, "duly settled and adjusted between them, previous to such delivery."

Here, then, are the plaintiff's own acts, and of course, if true, "his own knowledge." It was he that paid the consideration, and he that "received and accepted" the deed; and it was he that had possession of it for eight months and upwards. Is this positive oath, then, of the plaintiff-for being controverted as a pleading by the sworn answer of the defendant, it is by law no evidence of itself-sustained by the proof.

Whatever may be the absolute justice of the plaintiff's claims, (and they certainly, as will presently be seen, are not without support in the evidence,) one striking omission on his part cannot fail to excite surprise. Although a whole week was consumed in the trial, and every opportunity afforded for the fullest possible developement of the truth, not a particle of evidence was offered to substantiate the alleged payment of the eleven thousand dollars, the payment of which to Miss Blackwell is said to have been acknowledged by her, and to have been the consideration for which she "sold and conveyed" the property in dispute to the plaintiff. On the contrary, the whole tendency of the plaintiff's efforts, on the trial, was to overthrow, and not to substantiate, this allegation of his complaint; and to show, in the language of his own letter, that as the defendant "received" the property from him "without consideration,” she should "return it" to him in like manner, when requested; and that to do otherwise would be nothing less than an act of "high-handed villany," the very "thought" of which, unless under a "delusion" practiced by her then brother-in-law, now husband, Livingston, she could not, "for one moment," entertain.

Can a party, with due regard to the solemnity of an oath, be permitted, in a court of justice, thus to shift his ground? Can he, without explanation, whatever may be the actual truth, be heard to say, that his own sworn statements were deliberately

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Practice Reports in the Supreme Court and Court of Appeals, Svazek 14