Napier v. Server

CADWALADEE, District Judge.

I think it established that the defendant, Mrs. Server, furnished the money with which the equity of redemption of the house in Mount Vernon street was bought, and if the conveyance by her son, the bankrupt, to her ■had been made .on or before the 1st of January, 1873, I would have considered it the mere execution by him of the trust in her favor, which resulted from her ownership of the money. But on the 1st of January, 1873, she accepted from him the single bill for $8,-690, of which she has made proof in bankruptcy. If the consideration of this obligation included the $4,000 paid for the equity of redemption in question, there could be no subsequent assertion of a resulting trust. I do not think it would be safe to rely upon the testimony which is adduced by the defendant to show that the settlement of 1st January, 1873, on which the obligation for $8,690 was received, did not include the $4,000 in question. Her testimony, unsupported by that of her son, would not suffice, and his testimony is in this respect vague and improbable, and is contradicted by his statement to a creditor that he owned the house himself.

Therefore it is decreed that the defendant convey the house and lot of ground in question, with the appurtenances, to the complainant and his heirs, in trust for the uses and purposes of the trust vested in him under the bankrupt law of March, 1876, and the suppletory and amendatory acts of congress. But I think that the costs of this conveyance and the complainant’s costs in this case ought to be paid out of the separate estate of the bankrupt, John P. Server, and that the defendant’s proof, already made in the court of bankruptcy, should be allowed.