38 N.Y.S. 1063 | N.Y. App. Div. | 1896
So far as this appeal presents the claim that respondent was divested of title to the premises in dispute, by virtue of the judgment rendered upon the foreclosure of the mortgage held by Huldah H. Clapp, the decision in Clapp v. McCabe (84 Hun, 379) must be regarded as-.conclusive thereof in his favor,, and this question need
If the habendum cannot be reconciled with the premises so that full effect may be given to both, it must give way and the latter will stand. (Mott v. Richtmyer, 57 N. Y. 49-63.)
“ Where the granting clause of a deed is silent as to the estate intended to be conveyed, resort may be had to the habendum to ascertain the intention of the grantor in that regard! It cannot be used either to enlarge or diminish the estate specifically defined in the granting clause, for if it is repugnant to that clause it is void, but if that clause is either silent or ambiguous, then the habendum becomes the standard by which the estate granted must be'measured.” (Havens v. Sea Shore Land Company, 47 N. J. Eq. 366.)
But like the Words in a contract, all the words employed in the -deed should be given some effect if possible, and if consistent with the evident purpose and operation of the deed. (Havens v. Dale, 18 Cal. 366.)
The settled rule requires that the construction of written instruments should be as near to the minds and apparent intention of the parties as is possible, and- complies with the statutory declaration (4 R. S. [8th ed.] 2461, § 2) that in the construction of conveyances it shall be the duty of courts of justice to carry into effect the intent of the parties so far as such intent can be ascertained from the whole instrument, and is consistent with the rules of law. (Bennett v. Culver, 97 N. Y. 250.)
■ This rule is made imperative upon jüdióial tribunals and cannot be evaded where the intention of the grantor is made clearly apparent- by the language of the-conveyance. (Coleman v. Beach, 97 N. Y. 545.)
' It is said in this case: “ In the case of repugnant dispositions of the same property contained in the same instrument, the courts are, from necessity, compelled to choose between them ; but it is only when tliey are irreconcilably repugnant that such a disposition of the question is required to be made. If -it is the clear intent of the
In the light of these rules this instrument is to be examined-.and the intent of the parties, so far as such intent can be gathered .from the whole instrument aimed at and given effect, if the same be not inconsistent with. any rule, of law,. It is- at once evident that-if it was the intention of the grantors to vest the fee and sole beneficial interest in- the whole-estate, both--in law ¡and. equity in Callan,■ this instrument is most remarkable, and extraordinary means have been employed to- accomplish the result intended. The grantors ■ had become possessed by inheritance and -otherwise of ,a large estate -consisting of real and personal property, and if this construction obtain we are required to say that being actuated by a desire to compose the family difficulties and to rid themselves of the cause of all their-troubles, they granted, conveyed and assigned the- whole to a stranger, Callan, his - heirs- and assigns,--to have and to hold to-their own proper use, benefit and behoof, forever. 'This is quite remark- ■ able as an illustration of how the “ root of evil may be- summarily dealt with and at the same time exercise extreme benevolence, It would,'it seems, lessen' the satisfaction of the grantors to make- a simple conveyance, and so they recite all their grievances, and differences and express the. spirit that actuates them, and .thus inform the grantee why they transfer all of their property to- him for a dollar “ and other good and valuable considerations,” from
This was the grantee’s position, if the appellant’s construction is to be sustained. But further. The grantors covenant “ to ratify and confirm, and do hereby severally ratify and confirm each, all and every act or acts done, or which may, should or conld be lawfully axul properly done, performed or executed by the said party of the second part, or by his duly authorized and appointed agent or attorney, under or by virtue of this instrument;” and then declare the instrument to be irrevocable. The instrument is silent as to what acts may be lawfully and properly done under and by virtue of it, except that they must have some relation to the express purpose of adjusting and settling differences, litigations, etc. For these purposes only was the deed made and accepted. If the true construction of the deed is to transfer a fee simple absolute, the declaration of irrevocability adds nothing to it. If,
There is an insuperable difficulty in endeavoring to carry out and give force to the true intent of the parties, talcing all the provisions of the deed together, in reaching a conclusion that it was the intent of ■ the parties to transfer the absolute fee and sole beneficial interest to Callan. If we disregard these provisions we defeat the manifest intention of the. grantors. And this can be done only by strained construction, the application of subtle and unsubstantial definition and 'technical and arbitrary rules. It is wholly inconceivable and improbable, if such was the intention, that all these recitals should be made, and the purposes for which the transfer was made should be declared, and that the grantee should accept it for these purposes. We think it is more in harmony with the authority cited, and all the terms and conditions of the instrument taken together, to hold that the habendum clause should be limited and controlled by the other clauses and provisions in the deed.
In Syracuse Sav. Bank v. Holden (105 N. Y. 415) it was héld that a conveyance to B., his heirs and assigns forever, in trust for 0,, with power to sell or mortgage, vests no title in B., but simply a general power in trust for C. Where an unauthorized trust is attempted to be created the words “ heirs and assigns forever ” will not carry the fee to the grantee. (Heermans v. Robertson, 64 N. Y. 332 ; Heermans v. Burt, 78 id. 259.) And in the latter case it is queried whether the instrument created merely an agency for the management of the estate for the benefit of the grantor, or a power in trust, and, therefore, irrevocable.
By an ante-nuptial agreement the wife conveyed to her husband, his heirs and assigns, all her real and personal property, and constituted him a trustee thereof, to have the entire management, direction and control of the property; and the instrument was declared irrevocable; but it was silent as to the persons to be beneficially interested in the trust. It was held that no trust was created and that the husband took no title whatever. (Dillaye v. Greenough, 45 N. Y. 438.)
Nor is the mention of a nominal consideration material when it appears by the instrument itself that the intention was to create a
There was evidently no intention to give Callan a beneficial interest in the estate or to invest him with any interest or trust other than that required to carry out the purposes mentioned in the deed. The “ other good and valuable considerations ” may be considered words of formality so commonly used in legal instruments, or they may refer to the benefit and advantage that will inure to the grantors from the acceptance of- the trust or power and the undertaking of the grantee to carry out their wishes.
We may now inquire whether the instrument creates a trust authorized by the statute or whether it is good as a power in trust. It is clear that no valid trust is created by the instrument, and, therefore, no estate vested in the grantee as trustee. Where the trust declared is not one recognized by- the statute the title remains in the grantor, subject to the execution of the trust as a power. (N. Y. Dry Dock Co. v. Stillman, 30 N. Y. 194.)
Whether this deed creates an irrevocable power in trust is not, perhaps, necessary to consider. The main point before us is whether it operated to vest the legal title in Callan. It may be proper, however, to inquire into the nature, scope and intent of this supposed power in trust. When an invalid trust is sufficiently declared in the instrument the court will have no difficulty in enforcing the execution of the power according to the terms and conditions expressed. But where the supposed trust is of a vague,, indefinite and uncertain character so that the court cannot ascertain with reasonable certainty what the power really is that it is called upon to enforce, the power must fall. Here no doubt the grantors intended to create a sort of trust, but its terms and conditions and the nature and extent of the duties of the trustee and the particular acts he may lawfully perform are'of so vague and indefinite character that it would be impossible to enforce the trust as a power of alienation without resorting to parol proof. If one is established it must be by interpretation of the doubtful phraseology
No power to sell, lease or convey is conferred by the instrument, and the Statute of Frauds declares that no trust or power over or concerning lands, or in any manner relating thereto, shall be created unless by act or operation of law, or by a deed or conveyance in writing. The trust must appear in writing, with absolute certainty as to its nature and terms, before the court can undertake to execute it; so that it may not be called upon to execute the trust in a manner different from that intended. (Dillaye v. Greenough, supra.)
It is essential that a sufficient intention to create a trust be expressed with a beneficiary named or that can be ascertained, and this must be fairly collected from the language used in the instrument. (Wilcox v. Gilchrist, 85 Hun, 1; Morse v. Morse, 85 N. Y. 53 ; Ward v. Ward, 105 id. 68.)
The object of the statute in limiting express trusts was to restrict them to cases in which it is necessary for the protection of those interested that the title or possession should be vested in the trustee. Where no such necessity exists the intent was that the trust should be executed as a power. (Heermans v. Robertson, supra)
Where, by the legal construction of the instrument, the sole purpose is apparent merely to create a trust, although such instrument be. an absolute conveyance in fee, such legal estate remains in the grantor, subject to the execution of such povrer, which is capable of being enforced in equity (Ford v. Belmont, 7 Robt. 97), the grantee becoming, if the duties imposed upon him are such as can be legally and properly executed, the trustee of a power. (N. Y. Dry Dock Co. v. Stillman, 30 N. Y. 194.)
And it is to be implied from the very nature of a trust or power that the grantee does not take for his own benefit (Dillaye v. Greenough, supra) .
Examined in the light of. the cases and the Revised Statutes relating to powers (4 R. S. [8th ed.] pp. 2444, et seq.), wliat is the nature of this power, if it be one, in what manner is it to be executed and by what means ? The instrument itself is silent. All we know is that it was made and accepted for the purpose of adjusting and' settling the differences and litigations mentioned^ and that in order to
Was this property liable to the claim of the creditors of Callan? Was it not subject to the claims of the creditors of the grantors (§§ 93, 103, 104) either by suit or execution ? Is it a power in trust ? It is true that the trusts are not sufficiently defined so as to be" capable of being enforced by a suit in equity, and, therefore, strictly speaking, it may not be a power in trust within the provisions of the statute. Nevertheless, there was an evident attempt to create a trust or a power in trust for the grantee, and not to vest a beneficial power in the grantee. For this purpose, therefore, we may say that it is a power in trust in a general sense, though not such a one as is recognized by the statute, or enforcible in equity. Here - there are a “ class of persons, other than the grantee of such power ” designated, who would be “ entitled to the proceeds * * * or other benefits ” that might “ result from the alienation of the lands,” if it should be
Having arrived at the conclusion that the instrument cre.ated ■ a power, if anything, in trust for the grantors, and not á beneficial power in Callan, let us inquire whether the conveyances in question were made by him to “ carry out and effect the purpose herein-before recited,” whether they were “ lawfully and properly done, performed or executed * * * under or by virtue of this instrument,” arid whether the grantees- acquired any title thereby.
Assuming that Callan had power to convey, did he, in fact, ever convey the premises here in question to Mortimer R. Clapp, through whom appellant derives his title? If not, then the appellant has acquired no title. It appears that on February 16, 1884, Henry A. Callan executed a conveyance of this property to one James T. Byrne, who, on the same day, conveyed to Cora Callan, the wife of Henry A. Both deeds expressed a nominal consideration, and they did not purport to be executed in pursuance or by virtue of any power. On July '22, 1884, Callan and wife executed a certain conveyance, expressing a nominal consideration, to Mortimer R. Clapp, but without referring to any power or power in trust. This deed contains a clause excepting and reserving from its operation that portion of the premises described in a certain release executed in 1863, reference thereto being made for a particular description of the portion of the premises so excepted. . It being conceded that the premises described in the complaint form a portion of the premises described in said release, it must follow that they were excepted from the operation of said deed from Callan and wife to Mortimer R. Clapp, and, consequently, that he acquired no title thereto which he could convey to the appellant. It will be observed that, as between Callan and his wife, the former had no interest in or power over the lands at the time of the conveyance to Mortimer •R. Clapp, for he had previously conveyed all his right, title and interest to her. ' Assuming, therefore, that Callan owned the ■premises, or possessed the power to convey them, and that the con
Nor can we presume that the conveyance by Callan through Byrne to his wife, for a nominal consideration, was made to carry into effect “the purpose hereinbefore recited,” or that it was “lawfully and properly done, performed or executed * * * under or by virtue of this instrument.” If a power of alienation had been given in terms, it might be presumed, perhaps, that the power had been lawfully and properly executed in carrying out the purposes expressed. (Bissing v. Smith, 85 Hun, 568, 569.) But we cannot reasonably indulge in any such presumption here without also inferring or presuming the existence of the power itself. We cannot say, in the absence of proof, that the conveyance to Cora was an act properly done under the instrument, and to accomplish the purposes therein mentioned. We cannot perceive that the conveyance to the wife of the grantee of the “ power,” for the consideration of one dollar, was made for the purpose of adjusting and settling the differences, litigations, etc., mentioned in the instrument of April 20, 1883. She was chargeable, with notice of the terms and conditions of that instrument, and that they must be observed, or she could acquire no title. If the power to convey had been expressly conferred, it would not be necessary to recite or refer to it in the conveyance made in the execution of the power; but since it "was not conferred in terms, the purchaser took the title at her own risk. If the power existed by necessary inference or implication, its execution was restricted to the purposes expressed, and .it must be lawfully and properly done. Was not the defendant chargeable with notice of these matters by the records ? We think he was; he was put upon inquiry. What acts might be
Assuming that Henry A. Callan was the owner of the premises by virtue of the instrument of April 20, 1883, he conveyed all his interest to Cora, and if there is any outstanding title to these premises, as we have seen, she owns it. But, as we think we have established, Callan really had no such interest and no power to convey to his wife, Cora; consequently the title remained in the Clapps, the one-seventh interest in the plaintiff, and defendant Byrnes never received any conveyance conveying title to these premises.
The infancy of the defendant does not become important, in view of the conclusion we have reached, as there was no deed to ratify,confirm or avoid. There is nothing upon which to base the charge of fraud alleged in the answer. It is reasonably clear that plaintiff may have supposed that his mother, Huid ah H. Clapp, obtained title to the premises by the foreclosure and the referee’s deed, and
Plaintiff supposed and believed that Mortimer owned the property, and defendant had notice by the records that he did not. By this record he was bound. (Cambridge Valley Bank v. Delano, 48 N. Y. 326 ; McPherson v. Rollins, 107 id. 316 ; Kirsch v. Tozier, supra.)
We conclude, therefore,
First. That the habendum clause in the deed must yield to the other jiro visions of the instrument of April 20, 1883, and that no beneficial estate vested in Callan by virtue of that deed.
Second. If anything, the deed created a power in trust in Callan for the benefit of the grantors named therein.
Third. In fact, Calían never had any title to these premises that he could convey, and never conveyed them, and the title to the property in suit is now in the plaintiff.
Fourth. That Byrnes, the defendant, was put on inquiry concerning his source of title when he received the deeds, and such inquiry would have shown that the persons assuming to convey had no title to the premises, or power to convey them.
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment in both actions affirmed, with costs,