1 Barb. 610 | N.Y. Sup. Ct. | 1847
One of the most important questions involved in this controversy, is whether the deed to Mrs. Ely, of October, 1823, was valid, and actually conveyed the farm to her; and if it did not, whether the grantor, David Judson, and the plaintiff, who represents him, are not estopped from denying that it did.
I. Did the deed executed to Mrs. Ely actually convey to her the title to the premises in question 1 (1.) It is said by the counsel for the plaintiff, that by the terms of the deed and the legal construction thereof, the grantor did not profess to convey any thing but his right and title ; which, in fact, was no title
To show that by the above description of the premises conveyed, the grantor merely released, or quit-claimed, such title as he might have, the case of Allen v. Holton, (20 Pick. 488,) is referred to. In that case, the grantor conveyed in the following words: “ All my right, title and interest, in and unto the ferry called, <fcc., and the boat, &c., and all the estate, land and buildings standing thereon, as the same is now occupied and improved by me.” And the court held that the deed merely purported to convey such right as the grantor had in the lands, and that the covenants were limited by the grant. And looking to the words of the grant and descriptions alone, it cannot be doubted that such was the intent of the parties to the deed. The intent of the grantor was to convey his right
I see no reason, therefore, why a court of equity should not protect the title of Mrs, Ely, in her heirs, -against her husband and those claiming under him, if, in truth, her property formed the consideration of the conveyance to her; even if she had notice of her husband’s prior deed. But (3.) I am inclined to regard Mrs. Ely as a bona fide purchaser, without notice.
First. There is no proof of notice to her. (1.) There is not the slightest evidence of actual notice to her, of the prior deed to David Ely. (2.) The plaintiff’s counsel claims to have shown David Ely to have been in the possession and occupation of these premises, at the date of the deed to Mrs. Ely; thus charging her with constructive notice of whatever title he possessed. The witnesses relied on as proving this fact, are Lewis Frick and Culver. I have critically examined the testi
Secondly. As to the consideration being the patrimonial lands of Mrs. Ely. (1.) It has been solemnly recited by the grantor in the deed; and it is said in Cowen & Hill’s Notes to Phil Ev. 1237, that the general ride is “ that a recital in a deed estops the party executing it and those claiming under him, by title subsequent.” But this relates to the statement of the receipt of a consideration; and it is not to be denied that in an ordinary case of a statement in a deed, of the receipt of a pecuniary consideration, parol evidence may be received to contradict the statement in the deed. This may be done in a suit for the purchase money, (Cowen & Hill’s Notes, 217,1441;) and also on a question of damages upon a covenant in the deed; and on a question as to who received the money; and perhaps, in some other cases. (Cowen & Hill’s Notes, 216,218, 217, 1441, 1442.) But, as between parties and privies, (there being no fraud charged,) “ it is not allowable to inquire into the consideration, for the purpose of showing an interest different from, or additional to, the interest expressed in the operative words of the conveyance, or to defeat the deed, or to change its legal effect, in the creation or modification of the estate.” (See 2 Cowen & Hill’s Notes, 1444, and cases there cited.)
II. I come now to the other branch of the question proposed to be considered; which is, whether the plaintiff is not estopped » from alleging that the deed to Mrs. Ely conveyed no title.
(1.) In my judgment the grantor is estopped. He conveyed, as I have already said, the premises in question, to her, and not merely his right and title to them. By this, I mean, that he professed to convey the premises, and that the deed described the premises, with apt words to pass the title in them to the grantee, and he acknowledged a consideration moving from her. In addition to this, he covenanted to warrant the premises against all persons claiming under, by, or through himself, and against his own acts. Now, can he set up a title as against her, derived under the prior deed to David Ely 7 Could he have purchased the premises and taken a deed from David Ely and then brought ejectment against Mrs. Ely' or against her heirs, after her death ? He, doubtless, might purchase the life estate of David Ely, but could he purchase the estate of inheritance and enforce it against her children or their grantees 1
(2.) I am also of the opinion that if the grantor is estopped, the plaintiff, his administrator with the will annexed, is also estopped. Indeed, the case of Osborne v. Moss, (7 John. 161,) is an express authority for this position. It is supposed, however, by the plaintiff’s counsel, that the case of Babcock v. Booth, (2 Hill, 181,) has established a different rule. In that case, the administrator was permitted to recover against a fraudulent purchaser, for the conversion of a yoke of oxen, of which the intestate died possessed, in a case where the whole assets of the intestate, including the oxen, were insufficient to pay his debts. This decision was placed upon the ground that the sale was void as to creditors, and that formerly a creditor had a remedy against a purchaser taking the property of the deceased, under such circumstances, by charging him as executor de son tort; and that the revised statutes have abolished this remedy, and
For these reasons, it must be assumed, as between the parties to this suit, that when Smith purchased the farm in question it was owned by the children and heirs of Mrs. Ely, subject to the life estate of David Ely, as tenant by the curtesy. It matters not to the plaintiff, that these heirs consented that the creditors of David Ely should receive a larger portion of the purchase price, than his right, as tenant by the curtesy, would entitle him to receive. Nor can he complain that David Ely’s portion of the purchase money was paid to other creditors than himself; for the election to prefer one creditor to another, is the right of the debtor. It is argued, however, that the farm was purchased for a sum faf below its value, and that the purchase
The only remaining question respects the right of the plaintiff to reach, by this bill, the unpaid part of the note held by the deceased daughter of Mr. Ely, at the time of her death. If there had been no provision in the contract, respecting this fund, and she had, herself, made no disposition of it, it would have gone to her administrator, to be applied, first, to pay any debt she might have owed at her decease, and the residue would have been paid to her father,, under the statute of distributions. But the agreement for the sale of the farm, controlled the disposition of this fund. When she sold her interest in the land in question, to the defendant Smith, she had a right to provide that the whole consideration, or any part of it, should be paid to her brothers and sisters, or that it might be so paid, on the happening of any contingency, as, of her marriage, or death. She had a perfect right, also, to dispose of this fund, by will, to her sisters : and it would not be a case where fraud against the creditors of David Ely could be predicated of the transaction, even if it were conceded that the object was to place it where his creditors could not reach it; It is every day’s practice for a father so to dispose of his property by will, that the creditors of an insolvent or profligate child cannot reach it. So, in this case, Miss Ely could have disposed of this fund by
No claim was made, on the argument, nor can there be successfully, to reach the small amount of property given, years ago, by David Ely to one of his sons and the plaintiff not having discovered any property or equitable rights of the judgment debtor, which can be reached by this bill, it must be dismissed ; but as the plaintiff is an administrator, and had some probable ground to file the bill, so far as respects the proceeds of the farm, it is dismissed without costs. (1 Paige, 472.)
As between the parties to a conveyance, where a mere nominal consideration is expressed in such conveyance for the purpose of supporting it, a court ought not to allow proof to be given of the' non-payment of any consideration, in order to destroy the deed. (Mariam v. Harsen, 2 Barb. Ch. Rep. 232.)