199 N.Y. 405 | NY | 1910
Lead Opinion
I think that the judgment below is correct, in the one respect in which it is now the subject of attack. It allowed to the respondent, the Lyons Milling Company, compensation for the improvements placed upon the property *408 purchased by it; notwithstanding that the conveyance to it of the lands was held to have been void. The purchase price was not allowed. The conveyance was by the trustee named in the will of Margaret Shuler, in execution of a power of sale conferred upon the trustee, and, upon this appeal, we are to assume the correctness of the decision by the Appellate Division that the trust attempted to be created was invalid, as contravening the statute against perpetuities. The testatrix died seized of the property in 1893 and her will was admitted to probate, without contest, shortly thereafter. After making the trust provisions for her children and grandchildren, which have been held invalid, in a subsequent clause of her will, she empowered her "said trustee to sell and convey any and all of my real estate at public, or private, sale. * * * But all proceeds of said sale * * * to be paid upon said mortgage, or mortgages, which are a lien upon the said real estate in * * * satisfaction thereof until the same are fully paid." Her trustee was one of her sons and he was, also, appointed as the executor of her will. In 1898, five years later, for a consideration of $4,000, representing the fullest value of the property, he deeded the portion of the real estate in question to one Ennis, who, a few days later, conveyed it to the Lyons Milling Company, for which he had purchased it. At the time, the property was a mill site; the mill on which had been destroyed by fire and which had become unserviceable and unproductive. The milling company restored the mill and properties, borrowing money upon mortgage for the purpose from third parties, and the referee finds that the value of the property was enhanced to the extent of $10,000; offsetting the value of the use and occupation by the amount of taxes paid by the company. The plaintiff bank, appellant, which was conducting its business in the near neighborhood of the milling company, had, in 1884, recovered judgments against three sons of Mrs. Shuler; but had failed to satisfy them by execution. In 1901, three years after the milling company's purchase and improvements, the plaintiff caused execution to be, again, issued and purchased the interest of *409 the judgment debtors in the real property of which Mrs. Shuler, their mother, had died seized, upon the sheriff's sale thereof, receiving a deed in 1903. In 1904, it brought this action for a partition of such property; claiming that the devise thereof in Mrs. Shuler's will was invalid and void; that the conveyance of portions of it by the trustee transferred no title and that, through its purchase of the interest of the three sons at the execution sale, it was the owner of three-fifths of the real property of which Mrs. Shuler died seized.
Although the trust was invalid and the office of trustee, therefore, fell with the trust, the facts and circumstances were such as to warrant the court, in the exercise of its equitable powers, in allowing compensation to this respondent. The will had been unquestioned upon its probate and had stood unassailed for some five years, when the milling company purchased; taking an apparent title to the land under a power to sell, authorized for the purpose of procuring the means wherewith to discharge the mortgage debts. Now, although the exercise of the power by the donee may have been ineffectual to transfer the legal title to the real estate, which the testatrix had failed by her testamentary provisions to divert from her heirs at law, the milling company, when purchasing the land, had paid a full consideration, had acted in good faith and had dealt with the apparent holder of the right to convey a legal title, while he was acting in the performance of his duties and, as respondent had the right to believe, exercising his power to sell for the advantage of the estate. It entered into peaceable possession, under claim of lawful title, and proceeded to restore, and to make valuable, a milling property, which had been neglected and had become, practically, worthless; while the plaintiff and the heirs of the testatrix stood by in silence. Their situation was such that they may be considered as looking on while the milling company, in possession of the land, was expending money in constructing permanent improvements. They, presumably, entertained the belief that the milling company had acquired good title. *410
It is true that the probate of the will did not conclude the question of its validity, as a devise of the real property upon trust, and that in subsequent litigation that question remained open to the heir. But the further question is whether a court of equity, having jurisdiction of this action in partition, (seeHewlett v. Wood,
These reasons have been briefly, but sufficiently, stated. I do not think that the plaintiff-appellant is in any position, under the facts of this case, to successfully oppose the allowance of compensation to the defendant, the Lyons Milling Company, respondent, and that question being the only one presented to us, the judgment should be affirmed; with costs to the respondent, the Lyons Milling Company, against the appellant.
Dissenting Opinion
I dissent from the decision about to be made. I think no allowance should be made to the respondent, the Lyons Milling Co., for its improvements except as an offset against the claim for rents and profits. The value of the improvements cannot be charged on the land. The respondent entered into and retained possession under a deed from the trustee under the will of Mrs. Shuler which conveyed no title, the trust being void. It was not a tenant in common with any of the other parties to the action, but simply a party in possession claiming under an adverse title. Until the enactment of the present Code its title could not have been determined in a partition suit; the plaintiff's remedy would have been ejectment. This was settled law. (Florence v.Hopkins,
The decision about to be made makes the substantial rights of the parties depend on the form of the action. As already said, the plaintiff could have proceeded in this case by ejectment to recover the possession of the land without making compensation to the respondent for its improvements. Conceding that by its failure to take that course and by its voluntarily appealing to a court of equity, it has impaired its rights, what can be said as to the rights of the defendants, the plaintiff's co-tenants who are appellants here? They never appealed to a court of equity. Some of them are infants. Assuming that the plaintiff must suffer for its mistake in the procedure it has adopted, how can its course be allowed to impair the rights of the infant appellants? The appeal should be sustained at least as to them.
The judgment below is erroneous in other respects. The referee has found that the respondent's improvements have increased the value of the land $10,000, but he has made no finding as to the value of the land with or without the improvements. The evidence as to the value of the land alone varies from two to seven thousand dollars. The judgment directs that out of the sale of the property there first be paid the sum of $10,000 to the respondent milling company or its mortgagees. Neither at judicial sales or private sales does real estate always bring its full value, and the referee may be mistaken in his determination of value. Therefore, if the property should not realize a sum in excess of $10,000 and the costs of this action, the parties whom the court adjudges are owners of the land will be entirely deprived of it. On what possible theory can a judgment of this character be sustained? At least the owner should be first paid the value of the land, and then if there should be a surplus, that to the extent of $10,000 could then be applied to the milling company's equity, but this judgment does not place the owners even on an equality *414 with the intruder. This error alone requires a reversal of the judgment, for we can make no finding on the disputed question of value.
Again, the learned referee has set off the whole amount of the taxes paid by the milling company on the improved property against the rental value of the property unimproved. Surely this is a very queer rule. In no event should the appellants have been charged with more than a part of the taxes proportionate to the value of the land without improvements.
HAIGHT, VANN and WERNER, JJ., concur, with GRAY, J.; CULLEN, Ch. J., reads dissenting opinion, and CHASE, J., concurs on last ground stated in opinion of CULLEN, Ch. J.
Judgment affirmed.