Campbell v. Morgan

22 N.Y.S. 1001, 75 N.Y. Sup. Ct. 490, 52 N.Y. St. Rep. 648, 68 Hun 490

• Court: New York Supreme Court
• Decided: April 14, 1893
• Status: Published

Opinions

FOLLETT, J.

The question submitted is whether the instrument above set forth conveyed the premises in fee simple to Mary Ann Campbell. If the question is answered in the affirmative, judgment is to be rendered in her favor, that Morgan specifically perform his contract; but, if it is answered in the negative, judgment is to be rendered in his favor, against Mrs. Campbell, for $194.25, and interest thereon from January 13, 1893. The instrument was executed by the owner of the fee of the subject of the grant, a definite grantee is named, and the instrument has sufficient parties to- constitute a legal conveyance. The consideration recited is a valuable one, and sufficient to support a grant. The instrument contains sufficient words of conveyance:

“I do give, bequeath, and convey to my adopted daughter, * * * to have and to hold for her own personal use, and to dispose of in such manner and time as she may please.”

This language carried the fee to the grantee named. The words “give and bequeath” are surplusage, and do not affect the validity of the instrument as a conveyance, which is a deed, and not a will. The subject of the grant is described as follows:

“The house and lot of ground which we [the grantor and grantee] now occupy, together with the entire premises, ana all the real and personal property of every kind and name, to have and to hold for her own personal use, and to dispose of in such manner and time as she may please. A full description of the property herein conveyed will be found in the deeds accompanying this document, (except the personal,) which are signed and sealed in one package.”

This description is sufficiently definite to convey the title to the lot in question, as against the grantor and his heirs. Jackson v. De Lancey, 11 Johns. 365, affirmed 13 Johns. 535; Jackson v. Delancey, 4 Cow. 427-432; Pond v. Bergh, 10 Paige, 140, 156; Thayer v. Fenton, 22 N. Y. Wkly. Dig. 85; Scully v. Sanders, 44 N. Y. Super. Ct. 89; Wilson v. Boyce, 92 U. S. 320; Prettyman v. Waston, 34 Ill. 175; Bird v. Bird, 40 Me. 398; Harmon v. James, 7 Smedes & M. 111; Whitney v. Buckman, 13 Cal. 536; De Leon v. Higuera, 18 Cal. 483; Dyne v. Nutley, 14 C. B. 122; 1 Dart. Vend. & P. (6th Ed.) 602; 3 Washb. Real Prop. (4th Ed.) 399; 1 Jones, Mortg. §§ 65, 66.

The delivery was sufficient to vest the title in the grantee. Hathaway v. Payne, 34 N. Y. 92. In the case last cited a deed was executed upon the stipulation “that the said deed shall not be delivered to Gideon R. [the grantee] during the life of Gideon [the grantor] and his wife, or either of them, but shall remain in the possession of Edward Herrendeen, of Farmington, or his executors, administrators, or assigns, to be delivered to the said Gideon B. Payne, his executors, administrators, or assigns, immediately after the decease of said Gideon Payne and Phebe, his wife, as a good and valid conveyance of all the lands therein contained.” The deed was executed in November, 1839. The grantor died November 23, 1848. His wife, Phebe, died April 3, 1854. The grantor left a last will, by which he empowered his executors to “convey the real estate of which he should die seised.” The executors, on the 22d of June, 1854, after the death of Phebe, granted the land described in the deed of November 25, 1889, to one Hathaway, who brought trespass against Gideon R. Payne. A judgment was recovered by the plaintiff at circuit, and affirmed by the general term, but was reversed by tifie court of appeals, where it was held that the delivery by Herrendeen to Gideon E.-Payne, after the death of the grantor and his wife, vested the title in the defendant. See, also, Nottbecker v. Wilks, 4 Abb. Pr. 315; Grymes v. Hone, 49 N. Y. 17-22; Hunter v. Hunter, 17 Barb. 25; Crain v. Wright, 36 Hun, 74, affirmed 114 N. Y. 307, 21 N. E. Rep. 401; 3 Washb. Real Prop. (4th Ed.) 301. The question submitted must be answered in the affirmative, and we hold that Mary Ann Campbell held the absolute fee of the land at the time she entered into the contract with Morgan, who must specifically perform his contract.