65 N.Y.S. 183 | N.Y. App. Div. | 1900
This action was brought to compel the specific performance of a contract for the sale of land, or in case performance could not be • had, that the plaintiff recover the sum paid '■ upon the contract, together with her costs and expenses. By the judgment it was determined that specific performance could not be had, as the defendant could not convey a good title to the land, and, therefore,
“ Firstly. After all my lawful debts and funeral expences are discharged, I leave my house 43 Market St., City of New York, to my Neice Margaret T. Mulvey, during her natural life, with the privalage of selling the same at her option, with the concent of my executors. And from the proceeds of sale my executors will give Magge T. Mulvey Three Thousand- Dollars. And to my Neice Bridget Mulvey Two Thousand Dollars. The ballance to be divided in Three Equal parts amongts the following named parties.
“ 1st Rev. Edward Southwell O. C. Pryer Resedence 234 East 28th New york or to his successor.
“ 2nd Rev F Derichmant superior. of the Missionaries of the Sacret Heart Watertown New York or his successor.
“ 3rd Convent of the most Precious Blood 291 Sumpter street Brooklyn; Rev Mother Gertrude Superior or her successor N. Y.” By the concluding clause of the will executors were appointed to carry out its ¡provisions. The land in controversy. is the same as that devised iii the above quoted clause of the will.
By another clause of the will the devise to Margaret T. Mulvey, of the premises, was made subject to a life interest of a sister of the deceased, who was to receive the rents therefrom. The sister having died, Margaret entered into possession of the property. Subsequently she elected to sell the property and notified the executors in writing of the fact. Thereupon, and on the 31st day of May, 1895, the premises were sold at public auction at the real estate exchange in the city of New York and were bid in by Margaret for the sum of $4,000, that.being the highest sum bid therefor. The executors of the will thereafter, and on the 4th day of June, 1895, executed a deed of conveyance which recited inter alla that part of the will conferring the privilege of sale upon
The court below was of the opinion that the correct construction of the will vested in Margaret T. Mulvey a power of sale of the property subject to the consent of the executors. This conclusion is attacked and the claim made that as the will vests in the executors the.power to make distribution of the proceeds of the property, they became vested with the power of sale and were the only persons who could execute the power. If in fact the power was vested in Margaret then no title could pass until she executed the deed to the defendant, for until that time she had not conveyed but held solely by virtue of the terms of the will.
It is also very doubtful whether this deed by her is effectual to convey good title, for, by the terms of the will, the executors were to give their consent. It is the express provision of section 122 of the Statute of Uses and Trusts (1 R. S. 736) that where the consent of the grantor or of a third person to the execution of a power is requisite, such consent shall be expressed in the instrument or shall be certified in writing thereon.. The revision of this law as it now appears in the Real Property Law (Laws of 1896, chap. 547), section 153, continues the rule. The deed in the present case contains no recital in compliance with this provision of law, in consequence of which it would seem that it is not in conformity to the condition authorizing the exercise of the power and that no title passed by it. (Griswold v. Perry, 7 Lans. 98 ; Barber v. Cary, 11 N. Y. 397 ; Matter of Vanderbilt, 20 Hun, 520.)
If, however, it be assumed that the executors are vested with the power of sale, and that the consent thereto was lodged in Margaret, for which claim there is foundation, as they were to make distribution of the money (Perry Trusts, § 501), we are confronted by the fact that Margaret was constituted by the terms of the will
It is doubtless true that title conveyed by a trustee vested with a power of sale, or a title acquired by a trustee upon a sale pursuant . to the terms of a trust in a particular case, is not void and will stand unless attacked, yet ifjit is voidable and cannot resist an attack made upon it by the party or parties in interest, then such trustee, or a grantee from him, cannot convey a marketable title, unless other considerations intervene which cure the defect. (People v. O. B. of S. B. B. Co., 92 N. Y. 98.)
Patterson, Ingraham and McLaughlin, JJ., concurred; Rumsey, J., concurred in result.
Judgment affirmed, with costs.