Johnson v. Reeves

48 How. Pr. 505

• Court: New York Supreme Court
• Decided: January 15, 1875
• Status: Published

Opinion

Barnard, J.

— Without passing upon the technical question raised by the plaintiff, that the defendant cannot raise the question of title as long as he remains in possession of the premises, I proceed to consider the case on its merits. It was undoubtedly the intention of Ridgeway, when he executed the conveyance of the premises to his children, to reserve to himself a power of sale in his own name, for their benefit, and the deed should be construed according to that intention, unless inconsistent with the rules of law. This right to convey in his own name must be construed as if a separate deed had been given to him by the children, granting him the power to convey on their behalf and for their benefit. It is not inconsistent with the grant, although covenants of warranty are employed therein; and if not good as an express trust, it is to be upheld as a power in trust, under the statutes relating to powers. This being the case, the deed tendered by the plaintiff to the defendant was sufficient, as it conveyed to the defendant the premises in question in fee simple, free from incumbrances, and I order judgment accordingly for the plaintiff for the full amount of his claim with costs.