87 N.Y.S. 268 | N.Y. App. Div. | 1904
Lead Opinion
The complaint alleges that on the 25th day of November,, 1873, ^ plaintiff: made and delivered to the defendant Einsf eld’s testator, J ohn P. Einsfeld, a conveyance of certain real estate in the city of Buffalo, said conveyance being absolute upon its face; that such conveyance was made for the. purpose > of securing the payment of the sum of $1,000 due from plaintiff to Einsfeld; that said Einsfeld thereafter entered into possession of said property, and continued in possession until the time of his death; and it demanded an accounting of the rents and profits of the property, and an adjudication that the plaintiff be' entitled to a reconveyance of the property upon the payment of the sum found due. The conveyance was eiecuted on the date above stated,- and on the same date an agreement was entered into between John P. Einsfeld, Barbara, his wife, and the plaintiff herein, which agreement recited the indebtedness and the conveyance, and contained a stipulation on the part of John and Barbara Einsfeld that they would reconvey the property one year from the date of the agreement, or sooner, provided the plaintiff paid and discharged the debt; and further providing that the plaintiff herein should have the occupancy of the premises during the term, she agreeing ■ to pay the taxes and insurance premiums, and make all necessary repairs, etc., to the buildings.
Einsfeld entered into possession of the property in November, 1874. The plaintiff testified that she received the rents from the property for four months after the execution of the conveyance to Einsfeld. Einsfeld continued in possession of the property, claiming to own it, paid off the incumbrances which were liens against the property at the time of the taking of the conveyance, which amounted to upwards of $3,000, paid all the expense of repairs and
The evidence does not. show any special agreement made between the parties at the time Einsfeld entered into possession of the property, Einsfeld at the time of the trial being dead, and the plaintiff being disqualified as a witness in regard to the personal transactions. The testimony for the plaintiff rests, so far as oral proof is concerned, almost entirely upon the evidence of the plaintiff’s daughter, who details conversations and transactions had with Einsfeld, but there is no explanation of the possession by Einsfeld upon the expiration of the year after the conveyance of 1873. It does not appear that any further transactions took place between the parties until the year 1886. It is alleged that at that time the plaintiff, with her daughter, called upon Einsfeld and requested a settlement of the claims.'
The evidence fairly shows, we think, that at the time of .this meeting Einsfeld claimed to be the absolute owner of the property, and that some discussion was had with reference to the claims; giving the discussion the most favorable view for the plaintiff, it must, be fairly said that Einsfeld claimed to be the owner of the property, and that the settlement, which is hereafter referred to, was made with that understanding.
The result of the negotiations was a release, executed by the plaintiff, by which she released and discharged the said Einsfeld from all claims “ in law or in equity,” and from all “ manner of *" * , * ■claims * * * upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents.”
It is undisputed that at the time of the execution of this release this real property and the claims growing out of the conveyance thereof were the only matters in dispute between the parties. At the time of the settlement the plaintiff was acting under the direction of an attorney who appeared for her, and was present at the interview between her and Einsfeld, and who drew the release referred to. His testimony is to the effect that the interview was arranged for the purpose of adjusting the differences growing out of the conveyance. At the time of the execution of the release the consideration of $1,500 was paid by Einsfeld to the plaintiff.
The plaintiff’s case rests upon the proposition that the conveyance by the plaintiff, and the execution of the agreement to réconvey, constituted a mortgage, and that Einsfeld acquired no legal title to the property by reason of the. subsequent transactions. This view ignores other, and, we think, controlling features of the transaction. In the adjudging of these transactions, as.in others of like character,
■ the pritnal and controlling consideration is the intention of the parties. If it can be gathered from the agreement that the parties intended to transfer a title, intended that the title should vest in Einsfeld, and treated the property after the transaction as though the title had vested in Einsfeld, no valid reason is given why this' intention should be defeated. The claim that the written papers did not sufficiently convey a legal record title is not of itself sufficient to defeat the intention, for the contract having been performed, a fair consideration paid, with the intention that the title should vest in Einsfeld, the court would, under well-known principles, either of estoppel or enforcement, of executed agreements, adjudicate the legal title to be where it properly belonged. The plaintiff, for nearly twelve years after Einsfeld entered into possession of the property as owner, made no claim whatever, so far as the record shows, for a reconveyance of the property. Then, for some reason, a claim is made, and upon negotiations entered into, and full legal advice, the release was executed, with the intention above stated. No further steps were taken by the plaintiff to enforce any actual or supposed right in the premises until after the death of. Einsfeld, and then, after a silence of seven years, and two years after the death of Einsfeld, this action is commenced. Still retaining the consideration, she asks to repudiate the contaact already entered into by her.
It would seem to be enough to say that there was an entire lack
In the case of Odell v. Montross it appears that the consideration for the release was fifty dollars, practically nominal, and that the paper under which the right of redemption was claimed to be extinguished was, in its terms, ambiguous; and a discussion is there had as to the strictly legal effect of such documents; and were the facts, the same in the case under discussion and the legal effect of the paper only applied, perhaps the contention of the plaintiff might be upheld. But, as above stated, it ignores the rule laid down above, namely, that such agreements may be made and will be upheld in equity, if fair and dona fide. In the case of Odell v. Montross, in the application of the legal principle, it was held that the agreement there could not be upheld, and that the facts in that case did not bring it within the equitable principle. In the discussion of that case it was said : “ Had the defendant, acting upon the faith of this transaction, entered into possession of the premises and incurred expenses, and substantially changed his situation so that lie could not be placed in the same situation in which he was before, it might have estopped the plaintiff from taking shelter under the Statute of Frauds, or-alleging the insufficiency of the written instrument to carry out the agreement and intent of the parties: But there are none of the elements of an equitable estoppel in the case as presented by the record.” So that, in that case, the absence of the equitable principles led the court tcrapply the rule against the grantee, and it may be said further, while perhaps not as controlling, but as a fair consideration of the case under discussion, that not every agreement to
- The evidence, we think, discloses that at all times after the conveyance Einsfeld insisted that he was the absolute owner of the premises. The plaintiff, at the interview in 1886, claimed the right .to redeem. Here was a disputed situation between the parties, and Einsfeld might fairly, without surrendering his position as an absolute owner, have paid the $1,500 consideration in order to avoid the dispute. Certainly the payment of the $1,500, and asking for the release from all claims, could not be deemed an acquiescence under the claim ,of the plaintiff that she was the owner of the equity of 'redemption, but it should be treated as a settlement of disputed matters, leaving Einsfeld in full control and ownership of the prem- -
Another feature which we think takes this case out of the principle of Odell v. Montross is that Einsfeld and his successors have, upon the faith of the transaction, continued in the possession • of the premises, incurred expense and substantially changed their situation, so they could not be placed in the same situation they were before the agreement was made.
It is hardly necessary to discuss in detail this feature of the case. There is no dispute as to the facts. All taxes, assessments for improvements and the expense of the maintenance of the property were borne by Einsfeld during his lifetime, and by his executor after his death, up to the commencement of the action. It would seem impossible to restore Einsfeld or his successors to the position which he occupied prior to the making of the agreement in question. This feature of itself, it would seem, takes the case out of the principle of Odell v. Montross if it. were necessary to reconcile this case with the adjudication there. The case of Odell v. Montross is a case which perhaps may be considered a border case. Some discussion was there had as to the legal effect of conveyances, and the principle was applied as rigidly perhaps as in any adjudicated case, but it did not attempt to relax or ignore the basic principle that full effect is to be given to the intention of the parties to an agreement which violates no principle of law and is not against a rule of public policy, but, upon the contrary, the principle is reiterated that all agreements of that kind; when once established, will be upheld. And in that particular case it was held that the grantee showed no equitable rights which would suffer by reason of the enforcement of the legal rule, and, therefore, it was applied in that case, the statement there being that no injustice would be done to the defendant by the conclusion reached; but in the case under discussion it is impossible to see how a gross injustice would not be done to the successors of Einsfeld were the plaintiff permitted to recover in this action. It perhaps is more profitable to apply the generally accepted rules of law and equity in the consideration of this case than to endeavor to square it with a dissimilar case which is quoted as a precedent. Precedent, if without principle to sustain it, cannot be regarded as authority, and, as we have seen, the case
The judgment should be affirmed, with costs.
All concurred, except Hiscock, J., who dissented in an opinion.
Dissenting Opinion
This action was brought by plaintiff to effect a redemption of certain real estate situated in the city of Buffalo formerly conveyed to her by one John P. Einsfeld, and to procure an accounting between plaintiff and said Einsfeld and the present defendants of moneys paid out or received on account of the plaintiff. The principal basis of the decision made by the learned trial justice denying plaintiff’s prayer for relief, was in effect that she had a settlement with said Einsfeld whereby and in pursuance whereof she had released all claims against him, including any rights in said real estate or to redeem the same. I think that error was committed in this determination which calls for reversal of the judgment.
The undisputed evidence and findings" of fact made upon the trial established, amongst others, the following facts:
In 1873 plaintiff procured a. sum of money from Einsfeld and executed to him a deed absolute in form of the premises in question. Simultaneously, however, an instrument of defeasance was executed back giving the right to redeem within a limited time. This transaction cOncededly amounted to a mortgage by plaintiff of her property. A short time subsequently Einsfeld entered into possession of the mortgaged property, thereafter receiving and enjoying the rents and profits and making certain payments for taxes, interest, etc. Plaintiff moved away from the city of Buffalo-to Cincinnati. While living in the latter place -she sent her husband to Buffalo to get an adjustment of matters with Einsfeld, and he did obtain from the latter $150 of which he made no account to his. wife. In 1885 or 1886, after the deáth of her husband, plaintiff found in an unknown drawer the papers constituting the original transaction between her and Einsfeld. and soon thereafter came to Buffalo to secure a settlement with Einsfeld and a reconveyance and possession of her real estate, and after various negotiations and an examination of Einsfeld’s accounts with plaintiff and the property, an adjustment was arrived at between the parties whereby Einsfeld paid to plaintiff
At the time of the settlement aforesaid, upon plaintiff’s demand for a reconveyance of her property Einsfeld represented that he had conveyed away the same and also that he had failed or become financially irresponsible. ' Although these representations were not true plaintiff believed the same as expressly found by the trial court and. did not discover their falsity until after Einsfeld’s death. In 1893 this action was commenced.
It follows from the foregoing facts that plaintiff’s original conveyance to Einsfeld was a mortgage and that she is entitled to have an accounting with, and redemption of her property from the defendants as successors of Einsfeld, unless the same has in some manner been cut off or lost. It is urged in behalf of respondents that this result was accomplished by the settlement and release executed in 1886 and already referred to, but I am not able to accept or agree with that view.
Although the mortgage which plaintiff executed and which was put upon record was in form an absolute deed, she still retained title in fee to the premises covered thereby subject only to the conveyance as a mortgage and upon payment of her indebtedness would
Therefore, if the transaction between the parties has operated to cut off plaintiff’s right in said .premises it must be upon some other theory than that just discussed, of a conveyance of transfer.
Upon the trial an amendment of defendant’s answer was asked and permitted allowing them to pray for such a reformation of the release executed as would turn it into a conveyance by plaintiff of her interest in said premises, it being claimed that it was the intention of the parties that she should execute such a conveyance. It is apparent from the findings made by the trial justice and it is conceded in the brief of the learned counsel for the respondents that no such reformation of the release was adjudged and plaintiff’s complaint, therefore, was not dismissed upon that ground.
It is, however, urged within the suggestions made in the case of Odell v. Montross, already quoted, that after the settlement and execution of the release in question Einsfeld and these defendants as his successors expended such sums in the improvement of. the premises as to have created an estoppel against plaintiff’s enforcement of her claim to the lands; also that owing to the death of Einsfeld it will now be difficult for defendants to make an accounting of his receipts and disbursements on account of plaintiff and said premises ; also that there has been laches in the commencement of this action.
The last two suggestions may be disposed of first. I think there was no unpardonable laches in the commencement of the action. As already stated, plaintiff did not discover the falsity of Einsfeld’s representations that he had sold and conveyed away the property until his death sometime in 1891, and this action was
I pass, therefore, to the question of estoppel chiefly urged, that Einsfeld and the defendants had expended large sums upon the property by way of improvements. In the first place, in opposition to defendants’ invocation of the defense of estoppel against plaintiff upon principles of equity, it may be recalled that plaintiff was led into making the settlement and executing the release relied upon by the false representations of defendants’ predecessor in interest that he had parted with her real estate, and, therefore, could not reconvey it. It would be a somewhat strange and anomalous application of the principles of equity to allow defendants to build up the defense of estoppel against plaintiff upon acts which it is fair to state she was induced to perform by the fraud and misrepresentations of the predecessor through whom defendants claim.
Passing by this consideration, however, I am unable to perceive facts in this case which would constitute the defense of estoppel within the rule suggested in the Odell case. Einsfeld did not go into possession of the property upon the faith or strength of the settlement made with plaintiff. He was already there. He simply continued in possession, and continued to do precisely as he had been doing, and as he would have done if no settlement had been attempted. It has already been pointed out that the evidence shows conclusively that he expended no considerable sums for repairs or alterations of the property ; that his main expenditures were in the payment of taxes, interest and insurance, such as any mortgagee in possession would be apt to pay. As against these payments he and the defendants have had the possession of the property and the ben
In accordance with these views I think the judgment appealed from should be reversed and a new trial granted, with costs .to appellant.
Judgment affirmed, with costs.
