66 Barb. 215 | N.Y. Sup. Ct. | 1872
From the evidence offered at the trial it is manifest that the premises were levied upon, and advertised, by the sheriff of Oneida county prior to the death of David Holman, jun., and were sold on the execution and judgment of the Paris Company; and that such sale took place on the 28th of March, 1833; and
The error of the deed, in respect to the recital of sale, must therefore be disregarded, and effect be given to the sheriff’s deed. (5 Barb. 56. Wood v. Moorhouse, 1 Lans. 405.)
There having been a judgment, execution, levy and advertisement in the lifetime of the judgment debtor, David Holman, jún., a sale after his death was authorized, and effectual to pass his title in property so levied upon in his lifetime. (1 Lans. 406.)
It was insisted by the plaintiff’s learned counsel that the sheriff’s certificate expressly excepts the lands in question from the sale made by him.
The language relied upon, following a general description of the lands of the debtor (which would embrace these premises,) is as follows : “ embracing all’of said lands of said David Holman, jun., but the widow’s thirds, which the law gives, according to law.” The exception was not necessary. The sheriff could not sell the “thirds” of the widow. She Was entitled to enjoy, during her life, that portion of the premises of her husband which had been set off to her in the admeasurement proceedings. She had a life estate in the premises'; but subject to that life estate, the sheriff could sell the right, title and interest of the debtor in his whole real estate; and such was the effect of the sale evidenced by the certificate in question.
The clause in the deed from Burnett to the defendant which declares that “the party of the first part conveys the above mentioned premises subject to a claim that the heirs of D. Holman, jun., deceased, have by virtue of a will made,” does not contain words of reservation in the" grantor, of any title in the granted premises.
The deed must be considered in all its parts. It does not by its terms attempt to limit the estate conveyed, or the title to be passed. The words are general and .effectual to divest the grantor of the whole estate, title and interest; and the words quoted may be considered rather in the nature of a notice to the defendant, the grantee, that no assertion was made by the grantor that the premises were free of any and all claim on the part of the children named in the will as devisees. The words quoted do not expressly or by fair interpretation recognize an outstanding title in the devisees.
The title conveyed is only made “subject to a claim * * the heirs have by virtue of a will,” &c. The grant divested Burnett of the legal estate; it passed the right, title and interest of the grantor, whatever that right, title or interest was, at the time of the execution of the conveyance.
The deed of Burnett having been made to the defendant before the sheriff’s deed had been executed to Burnett, it is now insisted that it passed no title to the defendant; and that whatever title Burnett took by virtue of the sale and sheriff’s deed remained in Burnett until he conveyed by a deed executed to the plaintiff December 12,. 1856. If the dates of the conveyances as stated in the respective deeds control, in point of time, their legal effect, then the proposition put forth in be
Certainly the deed of Burnett to the defendant was given to pass the interest which Burnett supposed he had acquired in virtue of the sale on the judgment. The premises are identified in that deed as “the premises bought at auction or vendueand it appears, by the evidence, that the defendant, as well as Burnett, supposed that the deed embraced the premises named in the certificate of the sheriff for which Burnett after-wards received the sheriff.’s deed.
The deed might be regarded as an assignment of the certificate, as a transfer of the equitable interest of Burnett in the premises, acquired by reason of the bid and payment to the sheriff at the time of the sale, of the amount bidden for the premises.
That deed of April, 1834, was recorded in 1847, and was therefore constructively known (if not before actually) to the plaintiff.
By fiction of law, the deed taken by Burnett from the sheriff relates to the time of sale on the execution. The doctrine of relation is too well established to be questioned ; and a citation of authorities where it has been applied is all that will be needful to show its application to the deed of the sheriff to Burnett. It has repeatedly been held applicable to a sheriff’s deed made under circumstances not wholly unlike those surrounding the deed under consideration. (2 Washburn on Real Property, pp. 276, 278, 279. Jackson v. Bull, 1 John. Cas. 90, and note a. Noah v. Stagg, 2 John. 250. Jackson ex dem. Noah v. Dickenson, 15 id. 309. Jackson v. McCall, 3 Cowen, 80. Cook v. Travis, 20 N. Y. 400, 402.)
But it is insisted that section 61 of the statutes (2 Stat. at Large, p. 387) controls, and declares that the title of the debtor shall not be divested by the sale, until the expiration.of fifteen months from such sale, except for
By section 62 of the revised statutes (2 R. 8. 38) it is provided that the sheriff shall make a conveyance at the expiration of 15 months from the sale, if any part of the premises remains unredeemed, to the purchaser, and that “ such conveyance shall be valid to convey all the right, title and interest which was sold by such officer.”
These two sections must be construed together, and full effect given to their provisions.
Tiie debtor’s interest, right and title passed by the sheriff’s deed to Burnett, which, as we have seen, by relation operated to vest in Burnett that title, interest and right as of the 28th of March, 1833. And that being so, the deed of Burnett carried that right, title and interest to the defendant in this action.
The deed having been recorded, the defendant holds that title and interest, and therefore Burnett had no title, ■ interest or right in the premises, to convey, at the time of the execution by him of his deed to the plaintiff,
It is claimed, in behalf of the plaintiff, that Burnett being a trustee or executor at the time of his purchase at the sheriff’s sale, acquired no title.
The general doctrine of the disabilities of trustees to. profit out of the property of the cestui que trust is correctly quoted and invoked to aid the plaintiff in avoiding the sheriff’s sale. This rule of equity has been well settled and established by the cases cited by the learned counsel of the plaintiff, but none of the cases justify the court in holding,, as matter of law, in an action at law, that no title passed under the sheriff’s deed to Burnett. That Burnett took the title when he was an executor and trustee may be conceded; but nevertheless he acquired the title which the sheriff’s deed passed, subject to the right of the cestui que trust to ratify and confirm that title, or to compel the conveyance thereof by the trustee, upon a proper case made in a court of equity, for that purpose. (Hawley v. Cramer, 4 Cowen, 718. Torrey v. Bank of Orleans, 9 Paige, 663; S. C., 7 Hill, 260. Slade v. Van Vechten, 11 Paige, 20. Jewett v. Miller, 10 N. Y. 402. 5 Abb. N. S. 315.)
In Gardner v. Ogden, (22 N. Y. 327,) the doctrine was reasserted, and it was there held that the trustee must reconvey, or account for the value of the land taken by him. In that case, which was a suit in equity, the trustee was required to reconvey the lands which he held unsold, and to account And pay over the proceeds of the parcels which he had sold prior to the commencement of the action.
If this were a suit in equity, against Burnett, brought
But this is an action at law, against Horace Holman, only; the trustee, Burnett, is not a party to this action, and no complete determination of his rights can be had, in this action, because he is not a party to it.
The Code (§ 122) authorizes the court to order other parties to be brought in, when a complete determination of all the controversy between the parties cannot be had without their presence. But is this a case where the plaintiff would be entitled to relief, if this was an action in equity, and Burnett was a party %
It is not necessary to determine that question; but it may be proper to-state that no order is made to bring in Burnett, and to turn this action into one in the nature of an equity bill, for the reason that grave doubts exist as to the right of this plaintiff to maintain an action of the kind in equity.
The plaintiff has suffered more than twenty years to elapse since he became of. age, and since his right to call upon the defendant to convey accrued.
There is no proof of actual fraud, on the part of the defendant.
“ Such sales are not absolutely void, unless there be actual fraud on the part of the purchaser, and may therefore be confirmed by the heirs and legatees, or by long acquiescence.” “A constructive trust will be
The general proposition seems to be that the cestui que trust must repudiate and avoid the sale within a reasonable time after information, or his right of repudiation will be gone. (Law of Trusts and Trustees, p. 148.)
This case, however, will be disposed of as a law action; and if the plaintiff shall be advised that his remedy in equity still remains, he can seek an opportunity to avail himself of it by taking a new trial under the statute, and an amendment of the pleadings in such manner as to present the proper issues for an examination in equity of his rights and interests, if any, in the premises.
It follows from the views already expressed that at the commencement of this action the plaintiff was not seised in fee of the premises, and that he had no title to them which at law he could assert as the foundation of his right to recover the possession of the premises from the defendant.
The action being a substitute for the former action of ejectment, the plaintiff must stand or fall on the strength of his legal title.
The conclusions already expressed lead necessarily to findings of fact upon which the conclusions are:
1st. That the plaintiff is not the “owner or seised of the premises” described in the complaint.
2d. That the defendant is not wrongfully in possession thereof, and does not wrongfully withhold the same from the plaintiff.
3d. That the defendant is entitled to judgment, with costs of the action.
Judgment accordingly is ordered.
Hardin, Justice. Affirmed at a General Term in the 4th Department, December 29, 1873, Mullin, Talcott and E. D. Smith, Justices, upon the above opinion of the Special Term.]