Reitz v. Reitz

I think the findings are insufficient to support the relief granted by the referee, for two reasons:

First. There is no finding that the defendant took the deed of the Myrtle avenue property in his own name without the knowledge of his mother, whose moneys were used to pay the consideration. If the .defendant had taken his mother’s money and had *537paid therewith the consideration of the purchase, upon the agreement that he would take the title in her name, it would be a case where a trust would result to her. In the absence of such a finding, the relief granted must rest upon the principle that whenever one buys land for himself with the money of another person, taking the deed in his own name, a trust results to the owner of the money in the land. I do not suppose such a principle can prevail under our statutes as to resulting trusts.

In the second place, the claim is barred by the statute of limitations. Plaintiíf has no right, except as heir-at-law of his mother, who is deceased. Assuming that- the plaintiíf in 1854 used the moneys in his hands, as agent of his mother, with which to buy the lands in question, taking the deed in his own name, in the absence of fraud, Mrs. Reitz’s cause of action would expire in six or ten years. (Code of Civil Procedure, §§ 382, 388.) Mr. Reitz, died in 1866. An agency is not such a technical trust as to prevent the application of the statute of limitations. (Renwick v. Renwick, 1 Bradford, 234; Murray v. Coster, 20 J. R., 576; Lillie v. Hoyt, 5 Hill, 396; 4 Mass. C. C. R., 152; Angell on Limitations, 186.)

I think a new trial should be granted, order of reference vacated, and the case sent to the Special Term for trial, costs to abide event. . .

Motion for new trial granted, with costs to abide event, and order of reference vacated.