75 N.Y.S. 8 | N.Y. App. Div. | 1902
Lead Opinion
The plaintiffs by this submission seek to procure a judgment compelling the specific performance by the defendants of a contract of sale entered into between the plaintiffs and defendants -of certain premises on East Seventeenth street in the city of New York. At the time and place agreed upon in said contract the plaintiffs tendered a . deed of the said premises which the defendants refused to. .accept, claiming that the same did not convey a marketable title. The specific defect is claimed to exist in a certain deed by and through which one Eichard Ó’Gorman became vested with title to the premises.
On June 2, 1856, the fee of the premises in question was vested in Peter Stuyvesant and Benjamin E. Winthrop, as trustees of the separate estate of- Julia E, Stuyvesant, wife of Péter Stuyvesant, and upon the above-mentioned day Stuyvesant and Winthrop, as said trustees, together with Stuyvesant and Julia his wife, in their owir right, conveyed the premises to Theophilus B. Persse and Eobert Gillen, “ trustees■ of the sepa/rate estate of Margaretta Persse, wife of Dudley Persse,” . On February 29, 1860, said trustees and said Margaretta Persse joined in a conveyance of the premises to Eichard O’Gorman, the consideration expressed therein being the sum
It is claimed by the defendants that the deed from Stuyvesant and Winthrop, as trustees, to Persse and Gillen, trustees of the separate estate of Margaretta Persse, wife of Dudley Persse, shows the existence of a trust, undisclosed as to its terms, and as their subsequent deed to Richard O’Gorman was for a nominal consideration only, it must be presumed, in the absence of all other proof, that such conveyance was in violation of the terms of the trust, and, consequently, conveyed no title to the grantee therein. This claim is based upon the supposition that the words in the first deed, trustees of Margaretta Persse, are sufficient to show the existence of a trust, and that said trustees took only the bare, naked, legal title, in consequence of which they could only deal with the property founded upon a sufficient consideration and in accordance with the terms of the trust. It is stated that the most diligent search fails to disclose the existence of auy trust estate created for the benefit of Margaretta Persse, and that the only thing which appears, out of which is raised the existence of the trust, is the language contained in the deed to Persse and Gillen, which we have quoted. It is noticeable that the recital is not to them as trustees of anything. The language in form is simply descriptive, and if it be so construed or is susceptible of such construction, then it would create no limitation upon the title in them, and they would take as individuals and an estate in fee.- Of course, in order to reach this result all of the terms of the deed and the. rules of law applicable thereto are to be
O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.
Sic.
Dissenting Opinion
I dissent. I do not think that the submission is in any form which justifies the court in considering the alleged controversy. Questions are submitted to the court and according as it answers them it is to give judgment. There is no warrant for any such form, of procedure in the Code. The parties must submit the facts to the-court, and the court renders such judgment as the facts warrant;.
Judgment ordered for plaintiffs for specific performance of -the contract,- with costs.