Johnston v. Reilly

• Decision Date: 13 May 1904
• Citation: 66 N.J.E. 451,57 A. 1049
• Parties: JOHNSTON v. REILLY et al.
• Court: New Jersey Supreme Court

57 A. 1049

66 N.J.E. 451

JOHNSTON

v. REILLY et al.

Court of Errors and Appeals of New Jersey.

May 13, 1904.

(Syllabus by the Court.)

Appeal from Supreme Court.

Bill by Aaron E. Johnston, executor of Mary E. Throckmorton, against Patrick J. Reilly and others. Decree for plaintiff, and defendants appeal. Affirmed.

Chas. J. Roe, for appellants.

Aaron E. Johnston, in pro. per.

PER CURIAM. According to the allegations in this bill, Van Note intended to convey to Mary E. Throckmorton his legal title to the property subject to the defendant's incumbrances; and the defendants, by representing to Van Note that they were acting in the interest and for the benefit of Mrs. Throckmorton, so as to secure for her the surplus arising from the sale of the property on the foreclosure of their incumbrances, induced Van Note to convey his title to them. These incumbrances would establish against the defendants, in favor of Mrs. Throckmorton, a constructive trust, arising ex maleficio, coextensive with the representations so made (2 Pom. Eq. Jur. § 1055), without regard to the question whether there was any enforceable arrangement between her and Van Note.

The order overruling the demurrer to the bill is affirmed.