Opinion
March Term, 1901.
Judgment reversed, referee discharged, and new trial granted, with costs to appellant to abide event.
From the record before us it would appear that the learned referee was of the opinion that the Statute of Uses and Trusts operated to make the facts stated in the complaint insufficient to enable plaintiff to recover, though all the facts stated were conceded to be true. In this we think he was clearly in error. The complaint alleges an agreement; it does not say it was an oral agreement. Nor does it say it was in writing, but upon a motion of this nature it must be assumed that the agreement was in such form as to be provable. If the alleged agreement was in fact evidenced by a writing, so as to relieve it from any infirmity which the Statute of Frauds imposes, without doubt the alleged agreement would not only be provable but enforcible. The agreement itself was a lawful agreement and supported by a sufficient consideration. The complaint does not stand upon the old common-law right by implication that where the conveyance of title in land is to A., and the consideration is paid by B. that A. must be deemed in law only a trustee of the title for B. until A. proves some better right. That mischievous implication has been abolished by this statute against such implied resulting trust. The complaint places plaintiff's right to recover upon an express contract, with which the Statute of Uses and Trusts has nothing to do. And whether plaintiff can recover will depend wholly upon her being able to establish a legal contract or a contract supported by the subsequent facts which shall be deemed in equity sufficient. It is not necessary to allege in a complaint that such a contract was in writing; indeed it will not be necessary on trial to show that it was in writing; under the common law, such a contract was good if verbal, and if the defendants wish to avail themselves of the Statute of Frauds requiring better proof they must plead the statute as a defense or they will be deemed to have waived it. This is plainly declared in numerous cases as the rule of practice in this State. ( Matthews v. Matthews, 154 N.Y. 288; Honsinger v. Mulford, 157 id. 675; S.C. reported in 90 Hun, 589; Sanger v. French, 157 N.Y. 213; Crane v. Powell, 139 id. 379.) We express no opinion as to the ultimate effect of the Statute of Uses and Trusts upon the facts which may be disclosed in this case upon trial, since it appears to us that at this time the force of that statute is not involved. The judgment should be reversed, the referee discharged, and a new trial granted, with costs to the appellant to abide the event. All concurred.