Safford v. Hynds , 39 Barb. 625 ( 1862 )

By the Court,

Miller J.

I. I think that the judge on the trial properly decided that Safford was rightfully in possession of the premises and could maintain trespass. Safford claimed possession under Grounse, who had an equitable title to the property. According to the judge’s decision (which I think there is sufficient evidence to sustain) the purchase at the foreclosure sale was made by Hynds as the agent of and for the benefit of Grounse, with money furnished mostly by Grounse and in part borrowed of Hynds. The title was taken in Hynds’ name without the consent of Grounse who was the real purchaser through his agent Hynds. It was not the fault of Grounse that the title was not in him, and it was contrary to the intention of the parties that the papers were made out in Hynds’ name. The title to property, taken nnder the circumstances proved and found by the judge in this case, would be regarded as taken and held for the benefit of Crounse, and upon a bill being filed a reconveyance, would be ordered. (1 R. S. 728, § 53. Lounsbury v. Purdy, 11 Barb. 490. 16 id. 382. 18 N. Y. Rep. 448. White v. Carpenter, 2 Paige, 238. Reid v. Fitch and others, 11 Barb. 399. 18 N. Y. Rep. 448.)

Á tender of the money advanced by Hynds for Crounse was not necessary to maintain the action to compel a reconveyance of the property. According to the judge the money paid by Hynds, besides what was furnished by Crounse, was borrowed by Crounse. Hynds would therefore have a right of action to recover it back, but no formal tender to Hynds or demand of performance was required. Crounse being the real owner under an equitable title, and Salford being in possession rightfully by the consent and authority of Crounse, he had such a right to the possession as entitled him to maintain the action and to recover for any damages sustained to his possession. Hynds had no right to the possession and no legal title, and hence was liable as a trespasser.

II. There was no error in allowing Safford to show. an equitable title in Crounse. Nor do I think that the trespass suits were commenced before a right of action to establish an equitable title had accrued. The point that a tender and demand of performance was necessary prior to a right of action, I have already discussed and disposed of. It appears to be quite clear that Hynds had no right to purchase the property in his own name, and when an agent thus exceeds his authority the purchase will be held to be made for the benefit of the principal, at his election, even althongh the agent takes title in his own name. (Moore v. Moore, 1 Seld. 256.)

So far as the equity case is concerned, it appears that the money paid by Hynds besides what was furnished by Crounse, and a sufficient amount to cover all that Hynds could justly claim, was actually tendered and brought into court.

III. The evidence showing an equitable title in Crounse was admissible. It was no doubt sufficient prima facie for Hynds to show a right of possession under a foreclosure sale. (Lawrence v. Williams, 1 Duer, 585.) Conceding this to be so, it was still proper for Safford to show an equitable right to the possession of the premises in Crounse, under whom he claimed. The same facts which would entitle Crounse to maintain an equitable action to compel Hynds to execute a conveyance to him, would be an equitable defense to Safford, as the tenant of Crounse. (Code, § 150. Thurman v. Anderson, 30 Barb. 621.) Safford was in possession of the premises claiming title under Crounse. He did not propose strictly to show title in a third person, but to prove a right of possession through another person under whom he claimed. This would constitute a complete equitable defense to Hynds’ claim, and was legitimate and proper. It was not an attack on Hynds’ title collaterally, but proof of a right of possession in himself under Crounse.

IV. I am also of the opinion that no error was committed by the judge in deciding that the real purchaser of the premises was Alexander Crounse, and that he was entitled to a deed. The evidence warranted such a conclusion, and I do not think that Hynds was in such a position as to avail himself of that provision of the statute which declares that when a grant for a valuable consideration is made to one person and the consideration paid by another, the title vests absolutely in the alienee. (1 R. S. 728, 1st ed. § 51.) The section relied upon only applies when the conveyance is taken in the name of another person with the consent and knowledge of the person paying the consideration, and is expresly qualified by section 53 of the same act. The deed being taken in the name of Hynds, the purchaser, without the consent of Crounse, Hynds was not within the prohibition

[Albany General Term, December 1, 1862.

Hogeboom, Peckham and Miller, Justices.]

of section 51. (Hosford v. Merwin, 5 Barb. 51, 56, 57. Norton v. Stone, 8 Paige, 222. See also authorities before cited.)

It follows that the judgments must be affirmed and a new trial denied, with costs.