186 A.D. 857 | N.Y. App. Div. | 1919
The action was brought to recover damages for the alleged breach of the covenant of seizin contained in a deed by the defendant to the plaintiff of certain lands in Suffolk county, dated February 29,1912, the full consideration price of $9,000, with interest, being demanded as damages.
The material undisputed facts are the following:
The tract purported to be conveyed by the deed, which contains about one hundred acres, consists of parts of lots Nos. 18, 19 and 20 of the Brookfield partition, by which Brookfield parish (so called) in the town of Brookhaven, Suffolk county, was partitioned in 1793. A substantial part of the tract is included within said lot No. 19, which in that partition was allotted to one George Covit. From that time down to 1842 no record or other proof of devolution of title to that lot, or of its actual possession, appears. Deeds of the lot, or the portions thereof involved here, made in 1842, appear in this record, but there is no proof of any connection between the grantors-in those deeds and the said Covit. From those deeds the record title by clear proof descended to the defendant’s father, Hugo Rothschild, by deed to him dated1 March 29, 1887. He died November 14, 1899, leaving his widow and his daughter, the defendant. By his will, which was duly probated, he left those premises to his executors, as trustees, with full power of sale, in trust to invest the same, i. e., the proceeds, during the lifetime of his wife and to pay over to her semi-annually the income thereof for her support and that of the child, and at her death, provided the child (the defendant) should survive her and be twenty-five years of age or more, to pay over to the defendant the entire principal. The widow died October 16, 1911, and the defendant was then over twenty-five years of age. On'March 25, 1912, defendant executed and delivered to the plaintiff a full covenant warranty deed, dated February 29, 1912, of the premises for the consideration of $9,000, made up of $4,500, the estimated value
This action was first tried in May, 1915, and resulted in a verdict for defendant by direction of the court. The plaintiff duly appealed to this court and such appeal resulted, December 1, 1916, in reversal and direction for a new trial. Our memorandum of decision states: “ The proofs of the defendant indicate that she had no legal seizin at the time she made the covenant in question. Whether she had an equitable title, and whether a title of that character is sufficient to comply with the covenant, has not been discussed by either party to this appeal.” (176 App. Div. 881.)
In November, 1917, defendant interposed a supplemental answer, in which she pleaded the foreclosure action. In her amended answer, verified December 19, 1914, she alleged title in her father by adverse possession, and that defendant had good title and was seized when she conveyed to plaintiff as aforesaid. The defendant’s title to the other portions of the premises, not included in said partition lot No. 19, appears to be unquestioned.
The appellant presents here two main contentions, viz.:
It is well, perhaps, to consider and dispose of the subsidiary claims first. As to the direction of the verdict, the record shows that when the defendant rested the plaintiff moved for a direction of a verdict in her favor. No express determination of that motion appears to have been made, although the motion was not in terms withdrawn. After that motion was made, defendant’s attorney read to the jury “ the evidence of the various witnesses offered,” whose testimony related chiefly to the occupation of the premises and had been introduced evidently to establish title by adverse possession. At the conclusion of that reading both sides rested and defendant’s counsel moved for a direction of a verdict in her favor. Discussion was had, in which plaintiff’s counsel advanced his argument that the prior decision of this court had determined the case, which view of course would require a direction in plaintiff’s favor, and he did not ask that any question be submitted to the jury. The court, at the conclusion of the discussion, granted the defendant’s motion for a direction and very likely considered that that was, by necessary implication, a denial of the plaintiff’s such motion. In reply to this claim by appellant, respondent avers that the testimony so read by her trial counsel was all testimony received at the first trial and was read from the printed appeal book thereon, and the record appears to support the assertion and to show that such evidence had been offered at this trial and received before defendant rested and plaintiff made her motion for a direction of a verdict. Moreover, the judgment itself recites
As to the other subsidiary contention, that our decision upon the prior appeal established the law of the case and is decisive in the appellant’s favor upon this record, it is of course elementary that the decision of the appellate tribunal upon a prior appeal constitutes the law of the case for the retrial in the lower court, and that in general it will be accepted here upon a later appeal as of like effect. In this record, however, there appears some evidence additional to what appeared in the former record. Those new proofs are thus summarized in the respondent’s brief, and I think correctly: (a) The age of the defendant at the death of her mother; (b) the testimony of William S. Robinson as to occupancy; (c) the judgment roll in the foreclosure action, and (d) the trustees’ deed to the defendant.
It is to be noted that the testimony of said Robinson is the only additional evidence upon the subject of adverse possession by the defendant or her predecessors in record title. While that new evidence was perhaps merely cumulative to the evidence upon the same point in the former record, yet it seems to me that all of the evidence upon the subject did warrant a finding by the trial tribunal, court or jury that those who held the paper title, under which defendant claimed, had for forty years held and possessed the land adversely to any other claim under the Covit title or otherwise, and that
As to the appellant’s second main contention, namely, that when the defendant conveyed to the plaintiff the title was in the trustees under her father’s will and not in her, I conclude also that that is not sustained. Under the will of defendant’s father, upon the death of his widow, which event occurred October 16, 1911, it was the duty of the trustees thereunder to pay over the entire estate to his daughter, the defendant, at once, she then being upwards of twenty-five years of age. No doubt the terms of the will as to the trust estate constitute an equitable conversion of the land into money, but the trustees had not made that conversion actual, as they had not sold the land. The father had died in 1899, twenty years before, and there is no intimation in the record of any likelihood that any of his debts remained unpaid or
Upon this point it remains to be considered whether or not our prior decision did not decide this question in the other way. I do not so regard that decision. The record upon that former appeal did not disclose the important fact that defendant, when she made her deed to the plaintiff, was over twenty-five years of age, so that the duties of the trustees, except to turn over the estate, had ceased. That fact is a necessary basis to the conclusion above reached.
Moreover, I think that it was competent for the trial court, exercising the functions of the jury, to find that the deed in evidence by the trustees to the defendant, dated December 20, 1911, was actually delivered to defendant’s then attorney for her benefit before she made her deed to the plaintiff. It is true that the testimony of the plaintiff’s handwriting expert, that in his opinion the signature of trustee Sidenberg and that of the commissioner of deeds upon the acknowledgment had been made within one year then (November 20, 1917) last past, and the fact that the deed was not produced or accounted for on the former trial, as against the testimony of that trustee that he did sign the deed about the time of its date, and the defendant’s testimony that this deed was actually delivered to her a few months before the trial by the attorney who represented her in the closing of the estate and upon her sale and conveyance to plaintiff, warranted a finding by the jury that the deed was not completed as a valid conveyance until within one year before this the last trial; yet I think that the evidence did not compel that finding, but that it was, upon the whole,
The learned counsel for the respondent argues further that the foreclosure record in itself justified a finding upon this trial that plaintiff had good title when she gave the mortgage. To that contention the learned counsel for the appellant replies that the allegations in the complaint in the foreclosure action, to the effect that defendant had good title, were immaterial and that, therefore, the purported determination thereof in that action in favor of the defendant in this action is not binding upon the parties herein. I
My conclusion, therefore, is that the trial court was fully warranted in finding that defendant’s father and thereafter the trustees under his will, up to the death of her mother, had good title to the land in question, and that when defendant conveyed to the plaintiff she had succeeded both legally and equitably to that title, and that, therefore, there was no breach of her covenant of seizin.
Hence I advise that the judgment appealed from be affirmed, with costs.
Present — Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ.
Judgment unanimously affirmed, with costs.