Opinion
11-09-1907
OSTHEIMER v. SINGLE et ux.
Adam R. Sloan, for complainant Charles S. King, for defendants.
Bill in equity to recover dower by Mary A: Ostheimer against Gustav Single and wife. Dower assigned.
Herman Ostheimer (the husband of complainant), George Walker, and defendant Gustav Single were intimate friends. Ostheimer and Single were connected by marriage, and Walker was a member of the family of Single. They determined to purchase a tract of land "in partnership," each to own an undivided one-third interest. Neither having ready money, Ostheimer borrowed the necessary money by executing a mortgage on other property then owned by him, and with this money (except as to $10 prior to that time paid by Walker to bind the bargain) paid for the land and took title in his own name, stating to his associates that he would hold the title for them as to the undivided two-thirds of the land purchased, and convey to them one-third when they should thereafter pay their respective shares of the purchase price. Walker was instrumental in procuring the loan for Ostheimer; but does not appear to have made himself liable for its repayment. No written agreement or memorandum was executed by the parties. Some weeks after title was taken by Ostheimer he executed an instrument, in the ordinary form of an agreement for the sale of land, wherein he agreed to convey to Walker and Single each one-third of the land so held by him free from incumbrance upon the payment by either of them of one-third of the purchase price. In this agreement complainant, wife of Ostheimer, did not join. Walker subsequently paid to Ostheimer his one-third of the purchase money, and a deed was made by Ostheimer and his wife to Walker for an undivided one-third of the land. Defendant Single subsequently paid to Ostheimer his one-third of the purchase money, but for some reason Ostheimer refused to convey as agreed, and a bill for specific performance was filed by Single, based on the agreement of sale above referred to, and a decree procured, wherein Ostheimer was directed to convey to Single an undivided one-third of the land free from incumbrance. This deed was made by Ostheimer pursuant to the decree, except that the wife of Ostheimer (complainant) did not join in the deed, and to that extent the conveyance was not free from incumbrance. Subsequently a partition of the land was had in this court, and the one-third shares of Ostheimer, Walker, and Single, respectively, were set off in severalty. Ostheimer is now deceased, and the present bill is filed by his widow to recover her dower in the one-third which was in the partition suit set off to defendant Single.
Adam R. Sloan, for complainant Charles S. King, for defendants.
LEAMING, V. C. (after stating the facts as above). It is urged on behalf of defendant Single that the title of Herman Ostheimer was a trust title as to the one-third share now held by defendant, and that, in consequence, no dower right in that share has been acquired by complainant. I am entirely satisfied that it was the original intention of the three parties named (Herman Ostheimer, George Walker, and defendant) that the land should be regarded as owned by them as tenants in common. Had they taken the precaution to properly reduce their trust agreement to writing, no difficulty would now be encountered in giving effect to the intention of the parties to the transaction; but the statute of frauds requires that an express trust in land must be manifested and proved by some writing signed by the party to be charged. The effect of this statute is to render the evidence offered insufficient to establish an express trust in favor of defendant.
It is also manifest that a resulting trust will not arise from the circumstances proven. When a person purchases land with his own money, and takes title in his own name, a trust cannot be raised in favor of another by reason of the existence of a parol agreement upon the part of the purchaser that he would make the purchase for the benefit of another, and permit the other to thereafter make payment. One who sets up a resulting trust in himself, the conveyance being to another, must show that the land was bought with his money, and not merely that the purchase was made for his benefit or on his account. A subsequent payment of the money will not by relation attach a resulting trust to the original purchase, for a resulting trust arises from the fact that the money of the real, and not the nominal, owner, formed the consideration of the purchase at the time and became converted into land. 3 Reed on Statute of Frauds, §§ 911, 922; 3 Pomeroy's Eq. Juris. § 1037; Howell v. Howell, 15 N. J. Eq. 75; Cutler v. Tuttle, 19 N. J. Eq. 549, 562; Tunnard v. Littell, 23 N. J. Eq. 264, 267;Krauth v. Thiele, 45 N. J. Eq. 407, 409, 18 Atl. 351; Whitley v. Ogle, 47 N. J. Eq. 67, CO, 20 Atl. 284; Botsford v. Burr, 2 Johns. Oh. (N. Y.) 405, 409; Bailey v. Hemenway, 147 Mass. 326, 17 N. E. 645. In view of these well-settled principles, it is manifest that no trust resulted in favor of defendant, unless a portion of the money which was by Ostheimer paid for the land may be regarded as having been defendant's money. I am unable to so regard the facts. The money which was paid for the land at the time of the execution of the deed to Ostheimer was Ostheimer's money. It was money raised by the execution of a mortgage by him on land of his own. While it appears that his purpose in borrowing this money was to enable him to purchase the land in question for the benefit of defendant as to the undivided one-third of it in order that defendant could thereafter pay the one-third and take title to that portion, yet it is clear that the transaction cannot properly be considered or treated as a loan of one-third of the money to defendant. Had defendant failed to subsequently pay Ostheimer one-third of the purchase price of the land, it is clear that the latter could not have maintained an action on contract for the money based on the transactions antecedent to the purchase.
It is also manifest that the facts proven do not raise a constructive trust ex maleficio. 3 Pom. Eq. Juris. § 1056.
I also entertain the view that the existence of the written agreement wherein Ostheimer agreed to convey to defendant the one-third part of the property purchased operates to defeat any claim of a trust estate. This instrument has been enforced by defendant as an agreement of sale to the extent of the procurement of a decree for specific performance. Its terms are also inconsistent with the existence of any trust estate.
It is further urged on behalf of defendant that as complainant is sole devisee of the estate of Herman Ostheimer, and has filed no dissent under section 16 of the dower act (Gen. St. p. 1278), she cannot now claim a dower right in the premises in question. The section cited does not have the effect contended for. By the language of that section the widow's dower is barred only in other lands devised by her husband's will.
The further claim is made, on behalf of defendant, that inasmuch as the decree for specific performance, to the effect that Ostheimer should convey to defendant free from incumbrance, has not been complied with, in that complainant did not join in the deed executed pursuant to that decree, a claim now exists in favor of defendant against the estate of Ostheimer to the extent of the value of the dower interest of complainant. This claim defendant asks to have set off against the present claim for dower, by reason of the fact that complainant is sole devisee of the estate of Ostheimer. I doubt the right of this court to enforce such an off-set, and especially so in the present condition of the record. To do so involves an affirmative adjudication that the estate of Ostheimer is liable on such a claim. That adjudication properly belongs to a law court after a claim shall have been filed with the executrix of the estate. I do not understand that such claim has been filed. It involves, also, an affirmative adjudication that complainant has, as devisee, received assets to the amount of the claim. That fact can only be finally ascertained at the conclusion of the administration of the estate. If the claim against the estate can be established, and the assets of the estate are large enough to charge complainant as devisee with the amount of the debt, then defendant is entirely secure from loss. In case of failure of assets, there is no liability upon the part of complainant as devisee.
I am obliged to advise the assignment of dower in favor of complainant.