69 N.Y.S. 391 | N.Y. App. Div. | 1901
We assume for the purposes of this opinion that the trusts created by the deed from Gertrude Treat to John W. Bay of July 5, 1838, were never legally released or abandoned. Under that deed title to the property described therein was vested in the grandchildren of Gertrude Treat subject to the trusts in and by said deed created and also subject to being entirely defeated by the exercise by John W. Bay of the power of sale contained in said trust deed. The defendants in this action were not parties to that trust deed and John W. Bay was not a trustee for them. All of the parties to this action assume that Richard S. Bay and William A. Bay, as well as
On the 15th day of September, 1860, William Bay, trustee for Mrs. Anna Brass, conveyed to John W. Bay the premises in controversy by warranty deed in which deed is a recital that it is given in consideration of $12,000, the receipt whereof is thereby confessed and acknowledged by the grantor. On the 2d day of June, 1873, John W. Bay by quitclaim ‘deed conveyed the premises in contror versy to Anna Stahl. The fact that Anna Stahl had a life interest in the property by virtue of the trust deed to William Bay did not prohibit her from purchasing the remainder. “If one buys the remainder he becomes entitled to it and there never was any reason why cestui que trust should not purchase the remainder, thereby becoming entitled to it if he saw fit. If he did purchase it he became entitled to it just as much as though it had been devised to him or it had- descended to him as an heir- at law.” (Mills v. Mills, 50 App. Div. 227.) There is no proof whatever that the plaintiff had
In Bradley v. Walker (138 N. Y. 291) the Court of Appeals held that there was no presumption that an agreement relating to the matter in controversy had come to the notice of the person affected thereby from the simple fact that it was actually recorded when the acknowledgment thereof was insufficient to entitle it to record, and the court say: “ There is no claim that he had actual notice and no claim that he actually knew of the instrument on record, in the register’s office. But it is claimed that he had notice because his counsel had searched the records. It would be going a great way to hold that we must presume that in searching the records, counsel found such an agreement, and then presume further that he communicated the information to his client.” Plaintiff had constructive notice only of what appeared by the conveyances relat- . ing to the property in controversy. As already stated, appellants contend that William Bay, as trustee for Anna Bay, after the deed ■ to him of April 12,1860, was the owner of the premises in question subject to being defeated by the exercise of the power of sale by John W. Bay under the Treat trust deed. The only deeds since that time relating to the property in controversy are, the deed from William Bay, as trustee for Anna Bay, to John W. Bay of September 15, 1860 ; the deed from John W. Bay to Anna Stahl of June 2, 1873, and the deed from William Bay, as trustee for Anna Bay, to Anna Brass of August 29,1863. These deeds apparently gave to Anna Bay Stahl a good title to the property in controversy. We do not see anything in - these deeds that would necessarily lead an honest man using ordinary caution to make inquiry. There is no proof whatever that the consideration named in the deeds from William Bay are not in each case full and adequate. There is nothing, in either of those deeds to suggest that the consideration was not paid as the grantor in each of the deeds confessed
Parker, P. J., and Smith, J., concurred in result; Edwards, J., not sitting.
Judgment unanimously affirmed, with costs.