127 N.Y.S. 1006 | N.Y. App. Div. | 1911
The objection to the title rested upon the facts that the realty was vested in the three defendants under the father’s will, and that the records showed the defendant E. I. Townsend, as sole executor of said will, conveyed the property to his two brothers, the other defendants, in 1895, who on the same day conveyed to him personally a one-third interest in the realty. There was or is no contention that there was leave of court for conveyance by the executor to himself. The title was rejected on February 17, 1909, and the accounts of the executor were not filed until June 4, 1909. We think that the objection justified the rejection. Such conveyance was voidable (Gardner v. Dembinslcy, 52 App. Div. 473 ; affd., 170 N. Y. 593; People v. Open Board of S. B. B. Co., 92 id.98), and the doctrine of caveat emptor might apply to this plaintiff. (People v. Open Board of S. B. B. Co., supra ; Maupin Marketable Title to Real Estate, 109.) We think that the Statute of Limitations did not avail to perfect the title. The conveyance was made in 1895. In People v. Open Board of S. B. B. Co. (supra) the executor did substantially what was done in this case, and the court, per Finch, J., say: “ The purchaser here is not protected as one buying in good faith and without knowledge of the breach of trust, for he has ascertained
I may add that at the time of the objection the purchaser offered to take an executor’s deed from the defendant E. I. Townsend of one-third, together with a deed of the other two defendants.
Moreover, it appeared that in 1890 and 1892 conveyances were made of the realty by the said defendant E. I. Townsend as such executor to his brother Charles, from the latter to Hoffer, and from Hoffer to the said E. I. Townsend, individually; but that in a partition action brought by a sister of these defendants it was adjudged in 1895 that the conveyances were void; that the lands were estate lands, and the executor was directed to sell them under his testamentary power. There was no proof that this judgment was ever reversed or modified. This judgment is binding on the defendants. (Earle v. Earle, 173 N. Y. 487.)
The judgment and order must be reversed and a new trial must be ordered, costs to abide the event, unless within twenty days plaintiff consent to a modification of the judgment by deduction of the fifty dollars for architect’s plans, in which case, as so modified, it is affirmed, but without costs.
Burr, Carr, Woodward and Rich, JJ., concurred.
Judgment and order of the County Court of Rockland county reversed and new trial ordered, costs to abide the event, unless within twenty days plaintiff consents to a modification of the judgment by deduction of the fifty dollars for architect’s plans, in which case, as so modified, it is affirmed, but without costs.