Kanenbley v. Volkenberg

70 A.D. 97, 75 N.Y.S. 8

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1902
• Status: Published

Opinions

Hatch, J.:

The plaintiffs by this submission seek to procure a judgment compelling the specific performance by the defendants of a contract of sale entered into between the plaintiffs and defendants -of certain premises on East Seventeenth street in the city of New York. At the time and place agreed upon in said contract the plaintiffs tendered a . deed of the said premises which the defendants refused to. .accept, claiming that the same did not convey a marketable title. The specific defect is claimed to exist in a certain deed by and through which one Eichard Ó’Gorman became vested with title to the premises.

On June 2, 1856, the fee of the premises in question was vested in Peter Stuyvesant and Benjamin E. Winthrop, as trustees of the separate estate of- Julia E, Stuyvesant, wife of Péter Stuyvesant, and upon the above-mentioned day Stuyvesant and Winthrop, as said trustees, together with Stuyvesant and Julia his wife, in their owir right, conveyed the premises to Theophilus B. Persse and Eobert Gillen, “ trustees■ of the sepa/rate estate of Margaretta Persse, wife of Dudley Persse,” . On February 29, 1860, said trustees and said Margaretta Persse joined in a conveyance of the premises to Eichard O’Gorman, the consideration expressed therein being the sum of one dollar; no information of any other or further consideration can be discovered. The si gnature of the trustees to this deed is as individuals, and they are not described as trustees. On June 19, 1861, for a consideration of ten dollars, O’Gorman and wife conveyed the premises to the said Margaretta Persse, wife of Dudley Persse, which deed was acknowledged in April, 1864. On June 4, 1864, Theophilus B. Persse and wife quitclaimed these premises to Margaretta Persse for a consideration of ten dollars, and on May 1, 1868, Margaretta Persse, widow of Dudley Persse, for full and valuable consideration (§26,050), conveyed the said premises to the plaintiff’s testator, August Kanenbley, who held the’title to the same during his lifetime. The plaintiffs were duly appointed executors under said Kanenbley’s will, which contained a good and sufficient power of sale.

It is claimed by the defendants that the deed from Stuyvesant and Winthrop, as trustees, to Persse and Gillen, trustees of the separate estate of Margaretta Persse, wife of Dudley Persse, shows the existence of a trust, undisclosed as to its terms, and as their subsequent deed to Richard O’Gorman was for a nominal consideration only, it must be presumed, in the absence of all other proof, that such conveyance was in violation of the terms of the trust, and, consequently, conveyed no title to the grantee therein. This claim is based upon the supposition that the words in the first deed, trustees of Margaretta Persse, are sufficient to show the existence of a trust, and that said trustees took only the bare, naked, legal title, in consequence of which they could only deal with the property founded upon a sufficient consideration and in accordance with the terms of the trust. It is stated that the most diligent search fails to disclose the existence of auy trust estate created for the benefit of Margaretta Persse, and that the only thing which appears, out of which is raised the existence of the trust, is the language contained in the deed to Persse and Gillen, which we have quoted. It is noticeable that the recital is not to them as trustees of anything. The language in form is simply descriptive, and if it be so construed or is susceptible of such construction, then it would create no limitation upon the title in them, and they would take as individuals and an estate in fee.- Of course, in order to reach this result all of the terms of the deed and the. rules of law applicable thereto are to be considered. In modern construction of deeds it is the office of the premises of the deed rightly to name the grantor and grantee and to comprehend the certainty of the thing granted, and if the habendum clause may not be reconciled with the premises of the deed, so that full effect may be given both, the extent of the grant will be determined by the premises, and the habend/wm clause will be made to yield thereto. (Clapp v. Byrnes, 3 App. Div. 284; affd., 155 N. Y. 535.) It is clear that the language contained in the premises of the deed is, in literal effect, ■ merely descriptive ■ and can easily be construed as such under well-settled authority. (Towar v. Hale, 46 Barb. 361; Greenwood Lake & Port Jervis R. R. Co. v. N. Y. & G. L. R. R. Co., 134 N. Y. 435; Pfeiffer v. Rheinfrank, 2 App. Div. 574; King v. Townshend, 141 N. Y. 358.) The granting clause is “ do grant, bargain, sell, alien, release, convey and confirm Unto the said parties of the third part and to their successors and assigns, ? * *.” The habend/wm clause reads “ to have and to hold the above mentioned and described premises hereby granted and conveyed, or intended so to be with the appurtenances unto the said parties of the third part, their successors and assigns, to their only

* proper use and benefit and behoof forever,” There is nothing in - any of these w&rds which limit their estate. The authority is to hold to their successors and assigns. There ig no particular significance attaching to the word successors, in the absence of anything in the other part of the deed showing that a limited estate was granted, and the grant is to the assigns as well as the- successors. The grantee in the deed from Persse and Gillen were the assigns of such party in strict legal signification, and under the authorities which we have cited, it is held that no peculiar signification attaches to the word successors in the absence -of proof showing that a limited estate was granted. In the present case, taking all the language together, we think it clear that no trust was created and that the words trustees, etc., are to be regarded simply as. descriptive, in the absence of all proof tending to show the existence of a trust estate. And giving force and effect to the terms in the deed which authorized a conveyance to their assigns, we- have an absolute compliance with the estate as granted. It is significant also that in the deed by Persse.and Gillen, they do not assume to execute the same as trustees of anybody. Their act is that of individuals, and is a circumstance to be considered in interpretation of the deed under which they took the estate. As, therefore, there was no declaration of language used in the deed from Winthrop and Stuyvesant to them which created a trust, or which showed that they took as trustees, there was no defect in the chain of title aiid the plaintiff is entitled to a judgment of specific performance. There is some authority for holding that the court may, in the absence of all proof as to' the terms of the trust, presume the existence of an'express trust, valid as such in its creation, and thereby reach the conclusion that the trustee is vested with the whole estate, both- in law and equity. (People v. Stockbrokers’ Bldg. Co., 49 Hun, 351; affd. by the Court of Appeals on opinion below, 112 N. Y. 670; and cited with approval in Greenwood Lake & Port Jervis R. R. Co. v. N. Y. & G. L. R. R. Go., supra.) If under such circumstances a valid trust may be presumed, we think there is no violence done in making the further presumption that the trustee, in making a grant of the trust property, complied with the terms of the trust, and if this rule should be adopted in this case, it would result in holding that there was no defect in the title, as the presumption would be that the deed was made pursuant to the terms of the trust and not in violation of it. We prefer, however, to rest our judgment upon the ground that the language of the deed did not create a trust estate in Persse and Gillen, but that they were vested with an absolute title in fee to the estate under the deed to them, and in consequence of which could convey good title. It follows that judgment.should be awarded in favor of plaintiffs for the specific performance of the contract, with costs.

O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Sic.