Jackson v. Morse , 16 Johns. 197 ( 1819 )

Spencer, Ch. J. delivered the opinion of the Court.

Beekman acquired nothing but an equitable interest in the premises, in consequence of his verbal agreement with White, and the payment of the consideration money. He had no legal or executed estate, entitling him to be regarded as seised. (4 Com. Dig. title Uses, 445. D. 1.) His right, until it was merged in the deed to Little, was a mere chose in action ; and his remedy, had White refused to convey, would have been in equity alone, to compel a specific execution of the contract.

The statute of frauds requires all declarations and creations of trusts of land, to be in writing; and it provides, that all conveyances where trusts and confidences shall arise, or result by implication, or construction of law, shall be of the like form and effect, as the same would have been, if the act had not been made. It is essential, from the very words of the statute, to a resulting trust, that it should arise from some conveyance or deed ; and it happens, when an estate is purchased in the name of one person, and the price or consideration money is paid by another person. In such case there is a resulting trust in favour of the person who paid the consideration. (2 Johns. Ch. Rep. 408.)

The conveyance .by White to Little, did not create a resulting trust in favour of Beekman, for although White gave, the deed, on the consideration paid by Beekman to him ; yet, as between Beekman &r Little, the former renounced to the latter the benefit of this consideration, in satisfaction of a debt, which it is admitted was actually, and bona fide due. This was the same, in effect, as if Little himself had paid the consideration to White ; and the consequence is, that, thereafter, Beekman ceased to have any kind of interest in the premises, and the lessor of the plaintiff acquired no title under the sheriff’s sale to him.

Another point has been jnade, that the possession taken by the defendant was forcible and tortious, and that, therefore, he cannot be allowed to set up a title in Little, his landlord. The facts in the case do not warrant the objection; and the Court think this a sufficient answer. Individually, I am of opinion, that if the objection were founded in fact, it would be untenable. The action of ejectment is a possessory action, and the question to be tried is, who has the best title to the possession. A defendant may be placed in a situation precluding him from setting up title, either in himself or a third person, to defeat the plaintiff’s recovery. A forcible entry on the premises will not estop the defendant from asserting an independent right to retain the possession. The action of ejectment includes a trespass; it is founded on the notion that the defendant has forcibly entered upon the possession of the nominal plaintiff, and ejected him, and kept him out of possession, and its object is to regain the possession ofpremises of which he has beentortiously dispossessed It was fashioned for the purpose of trying the title; not, indeed, the strict right between the parties in all cases, for the plaintiff must have been possessed within twenty years prior to the commencement of the action. It may be safely asserted, that any defence which, as respects the right to the premises, would protect the defendant from a recovery of damages, in an action of trespass quare clausum fregit, will, a fortiori, protect a defendant in ejectment. In the case of Hyatt v. Wood, (4 Johns. Rep. 150.) it was decided, that if one having a possessory title to land, enters by. force, and turns out a person who has a naked possession only, the latter could not maintain trespass against the person having a better title ; and that if a person having a legal title, enters by force, though he may be indicted for a breach of the peace, yet he is not liable to a private action of trespass for damages, at the suit of the person who, although he is turned out, has no right. This principle is entirely applicable, in my judgment, to the action of ejectment.

Judgment for the defendant.