Knouse v. Shubert

YORK, P. J.

This is an action to establish a trust in real property and for a reconveyance thereof, as well as for an accounting of rents collected therefrom. At the conclusion of trial before the court sitting without a jury, judgment was rendered in favor of defendants. This appeal is taken from such judgment on the ground that there is an utter lack of evidence to support it.

An examination of the record herein discloses that respondent Bernice Muriel Shubert is a niece of appellant’s wife and after the death of the latter on January 4, 1934, Mrs. Shubert went to reside with appellant and his aged mother where she remained until October, 1937, doing the housework, including the laundry, collecting rents from properties owned by appellant and driving him around in his automobile while he transacted his business.

During this period said respondent obtained a divorce from her husband, whose name was Palmer, and took her maiden name of Edwards, later marrying the respondent Edwin Marion Shubert.

Three pieces of real estate, referred to herein as Alta Vista property, the 77th Street and the 107th Street properties, are involved in this appeal, two other parcels having been eliminated by stipulation during the trial, and the defendants Leask dismissed from the action.

The 77th Street and 107th Street properties were conveyed by appellant to respondent under the name of B. Edwards on January 4, 1936. The Alta Vista property was conveyed to her under the name of B. Palmer on May 14, 1935, by one Minnie Jacobs, the record owner of said parcel which theretofore had been given as security for a loan in favor of appellant. This conveyance was made by Mrs. Jacobs at the request of appellant and recited, a consideration of $300.

Appellant claims that he frequently deeded real estate to respondent Bernice Shubert with the oral understanding that she should deed it back to him when requested, and it is conceded that such agreement was carried out with respect to properties other than the parcels which form the basis of the instant litigation. It is contended by appellant that

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these three parcels were conveyed to said respondent without consideration, that she has deeded them to herself and her husband as joint tenants, and that she holds them in trust for the use and benefit of appellant. There is no claim made of a fraudulent intent on the part of said respondent.