author: Andrews, J.

text:
    Ambrose Thompson et al., App’lts, v. John B. Simpson et al., Ex’rs, Resp’ts.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Deed—Estoppel.
    Where one without title or authority from the real owner assumes to sell and convey the land in fee, and the true owner, knowing the facts, consents to ana does accept the proceeds of the sale in full satisfaction of his interest, this operates in equity as a confirmation of the unauthorized sale and precludes the real owner from asserting his. legal title.
    2. Ejectment—Estoppel.
    Plaintiffs’ mother died possessed of certain land. Her husband subsequently married again, and he and his second wife, whose name was the same as that of plaintiffs’ mother, conveyed said land to defendant’s grantor, who took in good faith and without suspicion of any fraud or claim on the part of the first wife’s heirs. With the proceeds of the sale other property was purchased which was conveyed to the son, who gave a declaration of trust which recited the foregoing facts and stated that he held the premises in trust for himself and his sisters, and they thereafter conveyed the last mentioned premises. In an action of ejectment to recover the first mentioned premises evidence was given of declarations of one of the sisters showing that she knew of the transaction about the time of the execution of the declaration of trust. Held, that the deed to defendant’s grantor conveyed only the life estate of plaintiffs’ father; that there was no estoppel in pais, as nothing had been done by plaintiffs which misled or deceived the defendants or their grantor, but that plaintiffs were precluded from maintaining the action by the fact that they had accepted the last mentioned premises in lieu of their interest in the property left by their mother, with knowledge of their rights.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon verdict in favor of defendants directed by the court.

      James R. Cox, for app’lts; Calvin Frost and R. L. Sweezy, for resp’ts.

       Affirming 36 N. Y. State Rep., 551.

   Andrews, J.

The title to the lot on Hudson street in the city of New York, the subject of this action, vested in 1837, on the death of Evelina Hammond, in her daughter' Mary Evelina Thompson, wife of Ambrose W. Thompson, in fee, and upon her death in 1845 descended to their five infant children, one son and four daughters, subject to the life estate of her husband, as tenant by the curtesy, who survived her and who died in 1882.

Ambrose W. Thompson in 1847, about two years after the death of his first wife, intermarried with Mary Ewing Ritchie, his second wife, she having the same baptismal name and the same middle initial as the deceased wife, both being by marriage Mary E. Thompson. This action was brought in 1887 by the surviving children of Mary Evelina Thompson, and the representatives of the deceased children, against the defendants to recover possession of the premises under the title derived from Mary Evelina Thompson. The defendants claim title to the lot under a warranty deed executed by Ambrose W. Thompson (the father) and Mazy E. Thompson, his second wife, to John H. Glover azzd his wife, Helen L. Glover, in April, 1853. The consideration of the conveyance to the Glovers was $10,000, the full value of the fee, which was paid by the grantees to Ambrose W. Thompson. A manifest fraud was perpetrated on the Glovers by him. They purchased in good faith, supposing that Mary B. Thompson named in the deed was the same Mary B. Thompson who in 1837 had inherited the lot from her mother, Evelina Hammond. Ambrose W. Thompson informed them at the time of the purchase that Mary E. Thompson named in the deed was the sole surviving child of Evelina Hammond and that the property belonged to his wife, and in the deed the devolution of the title on Mary Evelina Thompson was recited.

The Glovers took possession under the deed and in 1857 they erected a new brick building on the lot at an expense of $16,000, and in 1858 conveyed the lot to one Smith for the consideration of $28,000, whose executors, in March, 1882, conveyed it to John B. Simpson, the defendants’ testator, for $32,000, who subsequently thereto, but at what time does not appear, expended a sum exceeding $3,000 in improvements on the property. Neither the Glovers nor any of their grantees had any notice or suspicion of the fraud of Ambrose W. Thompson or of any defect in their title until about the time of the commencement of this action. In 1853, when the deed to the Glovers was executed, Ambrose Thompson, the eldest child of Ambrose W. Thompson and Mary Evelina Thompson, was an infant of the age of sixteen years, and the youngest child was of the age of eight years. They then had no knowledge of the deed.

It is evident from these conceded facts that the Glovers'acquired under the deed from Ambrose W. Thompson and his second wife only the life estate of Ambrose W. Thompson in the lot in question, and that the title in fee of his children, subject only to the life estate of the father, was unaffected by the fraud committed on his grantees. No conveyance made by the father could impair their title. The Glovers, as the result of the transaction, were defrauded out of their money by Ambrose W. Thompson, except to the extent of the value of his life estate, and the deed to the Glovers was no obstacle to the recovery by the children of their inheritance on the termination of the life estate of their father. They have never parted with their title by any deed or conveyance. But it is claimed that by reason of certain facts which will be stated, the Glovers and those who have succeeded to their title have retrieved their loss and have acquired an equitable title to the lot in fee, which they are entitled to enforce against the children, in whom the legal title was and is indisputably vested, and this notwithstanding the statute of frauds, which requires a deed or conveyance in writing to pass a freehold interest in lands, except in cases not now material to be noticed. 2 R S., 183, § 6. What disposition was made by Ambrose W. Thompson of the consideration received from the Glovers does not distinctly appear. It is claimed by the defendants that he used it in the purchase of a house and lot on Murray hill in the city of New York. The claim rests upon very vague evidence. It was shown that in September, 1857, Ambrose W. Thompson had title to a house and lot on Murray Hill, but there is no evidence when he acquired it. In that year he exchanged this house and lot with John A. Dix for property in Eye, Westchester county, the Eye property being estimated, in the exchange at the value of $25,000. Dix took the Murray Hill house and lot at the price of $10,000 (the same amount for which Thompson had sold the Hudson street lot), and at the request of Ambrose W. Thompson conveyed the Eye property to his son Ambrose, taking back from the latter a mortgage, of $15,000, the sum remaining due to him on the exchange.

In the same month Ambrose W. Thompson procured a declaration of trust to be prepared by his attorneys, and caused it to be executed by the son, which was recorded in Westchester county September 26, 1857, at the same time with the deed from Dix. This declaration of trust is an important document in the case. It recites the ownership by Mary Evelina Thompson, at the time of her death in 1845, of a certain house and lot in Hudson street (without describing it), and then proceeds as follows: “ And whereas, the said Ambrose W. Thompson has, since the death of his said wife, caused the said real estate and premises to be sold and conveyed, and then received and has since held, used and controlled the purchase money thereof upon the distinct understanding, declaration and agreement that he held the same for the use and benefit of Ambrose Thompson, Emily .Thompson, Mary Thompson, Margaret H. Thompson and Julia Thompson, children of the said Ambrose Thompson and Mary Evelina, his wife, to whom said house and lot descended on the death of their said mother, Mary Evelina; and whereas, the said Ambrose W. Thompson afterwards became seized of a certain dwelling house on Madison avenue in the city of Hew York, which house and lot he hath lately sold' and conveyed to John A. Dix, of the town of Eye, Westchester county, in exchange for certain lands and premises described as follows (describing them), and the said Ambrose W. Thompson hath caused the conveyance of (the Eye property) to be executed by the said John A. Dix and Catharine Morgan, his wife, to one Ambrose Thompson by warranty deed in fee simple, bearing date the 15th day of August, 1857 ; and whereas the sole purpose of such conveyance to me was to protect and secure to the said children of said Ambrose W. Thompson and Mary Evelina, his wife, the use and enjoyment of an amount of property equal to that left them by their said mother, as aforesaid, and to that end that I should hold and become seized of said lands and premises in trust for myself and the said Emily, Mary, Margaret H. and Julia, etc., and to carry such purpose into effect, I have promised and agreed to hold the same upon the said trust, and have accepted said deed and taken possession of the said premises as such trustee; now, therefore, I, the said Ambrose Thompson, do hereby declare, signify and agree to and with the said Ambrose W., and the said Emily, Mary, Margaret H. and Julia, -that I and my heirs and assigns do, shall and will from henceforth stand seized and possessed of the said above described lands and premieses, so as aforesaid conveyed by John A. Dix and Catharine Morgan, his wife, to me, in trust for the use and benefit of myself and the said (four sisters) and of our heirs and assigns forever. And I do also agree and covenant to pay over to them, the said Emily, Mary, Margaret H. and Julia, the proceeds of the said lands and premises, until the youngest of them shall arrive at the age of twenty-one years, at which time, or such earlier time as may be proper, Í will convey the same to them, their heirs and assigns, in fee simple,” etc.

When this declaration of trust was made, Ambrose Thompson, who executed it, was under twenty-one years of age. The father, at the time, as the evidence tends to show, was insolvent and pressed with debts. He directed the entire transaction; the conveyance from Dix to the son, and the execution by him of the declaration of trust. It does not appear that the sisters of Ambrose knew of the declaration of trust at the time, or that they ever at any time saw it, nor does it appear that any of the chil- ' dren were then cognizant of the circumstances of the conveyance of the Hudson street lot to the Glovers. The declaration of trust recites that Ambrose W. Thompson had caused the lot to be sold.” The natural inference which would be drawn from the recital by one unacquainted with the circumstances would be that by due authority of the court, or otherwise, the father had conveyed the interest of his infant children.

The trial judge, in directing a verdict for the defendants, found that the consideration received by Ambrose Thompson on the sale of the Hudson street lot went into the purchase of the Murray Hill lot and finally into the Eye property, It is said that the recital in the declaration of trust warrants this inference, although the fact is not directly asserted therein. It is also insisted that the children knew this to be the fact One Tuthill, who had been employed by Dix as a gardener on the Eye property, and who remained on the place for two or three weeks after the Thompson family cáme there in 1857, testified to hearing a conversation between the father and the four girls at meal time, in which Emily, the eldest, then nineteen years of age, said “ her father took her mother’s money to buy that place (Eye), and gave it to her brother, Ambrose.” Also, “ that they had a very handsome property on Murray Hill, and her father had traded it away for that island.” He also testified that two or three years afterwards he went to the house to fix some sashes and heard Emily say, “ they had cheated her out of her part; that she had nothing, only as they had a mind to let her stay there. The place belonged to her brother, Ambrose; that her father gave the deed, when he traded with John A. Dix, in Ambrose’s name, instead of giving it in the children’s name; that her father had cheated the girls out of that property and sold • it all to her brother; that her mother had left her an interest but her father had taken it away; that it was on Murray Hill, the property her father had traded off.” The testimony of this witness was given thirty years after the alleged conversations, and it does not appear that in the meantime they had ever been recalled to his attention. Mrs. Hewson, another witness for the defendants, with whom Mary, the second daughter, lived for five years prior to her death in 1870, testified that Mary spóke of the Eye property, and said that she had an interest in it which she had inherited from her mother.

As further evidence upon this point, it is insisted that the children, knew at least as early as 1868 (when they joined in a conveyance of the Eye property), of the declaration of trust, since the presumption is that they had read it and knew ^ the recital therein.

The history of the Eye property after its conveyance to Ambrose Thompson in 1857 has an important relation to the case. The father, Ambrose W. Thompson, removed there with his family soon after the purchase from Dix in 1857, and lived upon the premises for a period of five or six years, and then removed with his daughters to Washington, and they never again occupied the place. The father paid the interest on the $15,000 mortgage to Dix up to March 1, 1860, and from that time the interest accumulated, so that at the date of the decree of foreclosure of the mortgage, October 6, 1867, there was due thereon $21.125.53. In April, 1865, Ambrose Thompson, without the knowledge of his sisters, and presumably at the request of his father, executed a' second mortgage on the Eye property to one Davids, for $6,000, to secure a debt of the father. In April, 1866, Ambrose Thompson executed in his individual name and as trustee for his sisters, to one Stewart, a written contract of sale of the Eye property, subject to the Dix mortgage, in which there was a special covenant on the part of the vendor that no consideration had been paid for the Davids mortgage.

In the report of the referee in the surplus proceedings taken after the sale on the foreclosure of the Dix mortgage (which was put in evidence by the plaintiffs), it is stated that “ the contract was duly delivered to Stewart for a good and valuable consideration and that Stewart assigned the same by paroi to one Bonney (claimant of the surplus) for a good and valuable consideration, before the execution of the deed given in pursuance thereof, and that on or about the 18th day of October, 1867, Ambrose Thompson and his four sisters in compliance with the terms of said contract and in satisfaction thereof, made and executed a deed to Bonney.” The report also states that when the deed was delivered to Stewart the name of Bonney was not inserted therein, but was afterwards inserted under the direction of an attorney, and that the sisters of Ambrose Thompson entrusted the deed to him and authorized him to use the same as it was used, and that-he knew when it was delivered to Stewart that Bonney’s name was to be inserted as grantee. The referee further found that the deed was delivered, by Stewart to Bonney in payment for money advanced by Bonney to him, exceeding the amount of the surplus money. The surplus was $5,486.92, which was awarded and paid to Bonney, the claim under the Davids mortgage having been overruled.

The Bonney deed, which expressed a consideration of $60,000, was dated October 18, 1867, three days after a decree of foreclosure of the Dix mortgage had been entered, and was executed by Ambrose Thompson individually and as trustee for his sisters, and also by each of his sisters. It does not appear distinctly that the children of Ambrose W. Thompson have received anything from the Rye property, or that the consideration for the contract of sale made with Stewart was any benefit derived by them, except that Mrs. Hewson testified that Mary signed the deed to Bonney. at the request of Stewart, who informed her at the time that the deed was for money advanced by him to her and her sisters, and that witness also testified that Mary said she and her sisters had received large sums of money from Stewart Mrs, Hewson also testified that she knew that Mary and her sisters had received money from him. It appears that Stewart had business ■ relations with Ambrose W. Thompson, and the witness said that the father was out of the country when the advances were made by Stewart, and that Mary was under the impression that it was her father’s money he was giving her.

On the day of the execution of the deed to Bonney, Ambrose "W. Thompson addressed a letter to his son, requesting him to ■execute the deed presented by Mr. Stewart When the children first knew of the fraud committed by their father, in the sale to the Glovers, does not appear. The husband of one of the daughters testified that in 1872 his wife told him that her mother had died, leaving this property (Hudson street lot) in her own name, and the stepmother, having the same name, had sold the property. Ho notice was ever given by any of the children to the persons in possession of the Hudson street lot of their claim of title, until about the time of the commencement of the action. It does not appear that they knew who was in possession, or that any improvements had been or were being made on the property.

Upon the conclusion of the evidence each party asked the •court to direct a verdict in his favor, and the court thereupon directed a verdict for the defendants. The question to be determined is, whether this direction was justified. The effect of a request by each party for a direction of a verdict in his favor clothed the court with the functions of the jury, and it is well settled that in such case, where the party whose request is denied does not thereupon request to go to the jury on the facts, a verdict directed for the other party stands as would the finding of a jury for the same party in the absence of any direction, and the review in this court is governed by the same rules as apply in cases of ordinary verdicts rendered without any direction. All controverted facts and all inferable- facts in support of the judgment will be deemed conclusively established in favor of the party for whom the verdict was directed. Koehler v. Adler, 78 N. Y., 287.

The plaintiffs established an unquestioned legal title to the premises in controversy. Whether upon the facts proved, construed most favorably for the defendants, a case was made upon which, according to the principles of courts of equity, the plaintiffs are prevented from asserting their legal title against the defendants, is the real point in controversy. The case is important as between the parties, and still more important because it involves in its wider aspects a question affecting the security of all titles to real property, and a consideration of the circumstances under which a legal title may be practically subverted and lost, although the true owner has never executed any deed or conveyance of, or any writing agreeing to convey his land.

The counsel for the plaintiffs raises a point which may properly be considered before proceeding further with the discussion. It is, in substance, that the deed to the Glovers neither passed, nor purported to pass, any greater interest in the Hudson street lot than the life interest of Ambrose W. Thompson, and that, therefore, the question whether the proceeds of the sale were applied by the father to the benefit of his children is an immaterial consideration. The Glovers, it is said, got all they bought or paid for, and they, or their grantees, have no concern with, and no rights or equities growing out of the disposition of the proceeds. Much stress is put by counsel upon the statute declaration, 1 Rev. Stat., 739, § 143, that: “No greater estate or interest shall pass by any grant or conveyance hereafter executed than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant shall be conclusive as against the grantor and his heirs claiming from him by descent” There can be no doubt that the conveyance to the Glovers operated in law to convey the life estate of the grantor .only. The section of the statute quoted is a statutory declaration of the inapplicability to our • modes of conveyance of the doctrine of the ancient common law, whereby a feofment made by a life tenant, or by a person in possession of lands, although his possession was wrongful, had the transcendant power of creating an actual estate in fee in the feofee, divesting the seizin and title of the true owner, and leaving him or those entitled in expectancy a right of action only. This, “ and the other common law modes of assurance by fine and recovery, had the power of creating estates where none existed before, only limited by the will of the grantor at the time of the grant, although they might be subsequently defeated by an action.” Co. Litt., 370a; Sparrow v. Kingman, 1 Comst, 250; 2 Smith’s L. C., 730; Reviser’s, note to § 143.

Under our statute no such consequence can follow. The title: and estate which passes under a grant or conveyance is commensurate only with that existing in the grantor, although he may undertake to convey, and the deed purports to convey a larger estate. His conveyance cannot affect interests in remainder, and divests no estate except his own. While it is true, therefore, that Ambrose W. Thompson could only in law convey his life estate, and the Glovers only acquired that estate, the other part of the proposition of the counsel for the plaintiffs, that the deed purported to convey that estate only, is untenable. The quantum of estate intended to be conveyed by a deed is to be ascertained from its language The deed of Ambrose W. Thompson was not limited to a life estate, nor was it a quit claim only of his interest in the land. The deed in form was a conveyance of the land to the grantees, their heirs and assigns, and this unexplained by the context imports a conveyance of the entire fee. It contains a •covenant of general warranty, whereby Thompson and his then wife covenant to warrant and forever defend the land “ against all and every other person or persons whomsoever, lawfully claiming or to claim the same.” The intention of the grantor to convey an absolute fee is apparent not only on the face of the deed, but the extrinsic fact that the consideration paid by the Glovers was the full value of the fee is additional and conclusive evidence of the intention. It cannot be doubted that if Ambrose W. Thompson had subsequently acquired the title in remainder, vested in.the children, it would have enured to the benefit of the Glovers and their grantees, under the familiar doctrine of estoppel by deed. Whether a general warranty in a deed, not limited by recitals to a particular and limited estate, has the efficacy of actually vesting a subsequently acquired title of the warrantor, at the moment of its acquisition, in his grantee, or, as some claim, the warranty operates as a rebutter only of any subsequent claim of the grantor to the warranted premises, is not here material. A general warranty, not limited by other parts of the deed, however it technically operates, is only consistent with an intention of the grantor to convey the whole estate. The rule found stated in ■some of the books, that there is no estoppel where an interest passes, according to the modern cases, has no application to conveyances intended to pass the whole title, although the grantor had a limited interest which was carried by the conveyance. House v. McCormick, 57 N. Y., 310; 2 Smith’s L. C., 692; Long Island R. R. v. Conklin, 29 N. Y., 572. The contention, therefore, that the deed to the Glovers purported to convey only the life estate of the grantor cannot be supported.

It is convenient in this connection to refer to a contention of the defendant in support of the defense of the statute of limitations. That contention is that at common law a conveyance by a tenant for life of the fee, or of a greater estate than he possessed, operated as a forfeiture of the estate actually vested in the grantor, and authorized those in remainder to immediately maintain an action to be let into possession. It is therefore insisted that the ■statute of limitations was put in motion against the plaintiffs as soon as the conveyance of Ambrose W. Thompson to the Glovers was executed, or as soon at least as they attained their majority, which latter event occurred as to the youngest child more than twenty years prior to the bringing of the action.

Another section of the statute is a complete answer to this claim. It declares, 1 R S., 739, § 145, that: “ A conveyance made by a tenant for life or years of a greater estate than he possessed or could lawfully convey shall not work a forfeiture of his estate, but shall pass to the grantee all the title, estate or interest which such tenant could lawfully convey.” The protection intended to be conferred on the grantee by this section would be illusory if the remainderman, upon the theory of a forfeiture of the precedent estate by the conveyance by the owner thereof of the fee, was permitted to immediately enter upon the land. But under the common law rule the heir was not bound to take advantage of a forfeiture but might postpone his entry until the death oi the tenant for life, and meanwhile the statute did not run against him. Jackson v. Mancius, 2 Wend., 357; 2 Kent Com., 84. The defense of the statute of limitations therefore was not made out The life estate of the father terminated by his death in 1882, and the action was brought in 1887. The defense in this action, if any exists, must rest either upon the doctrine of equitable estoppel, or upon the ground that the plaintiffs accepted the Bye property in satisfaction of, or in substitution for their ■ interest in the lot on Hudson street. The doctrine that the owner of land may by his acts preclude himself from asserting his legal title against one who in reliance thereon has placed himself in .a position where to allow the legal owner of the land to assert his legal right would operate as á fraud upon the other party, is an established doctrine of courts of equity. The statute of frauds is not an obstacle to the exercise of this jurisdiction, and the reason usually assigned is, that a court of equity will not permit a statute made for the prevention of frauds to be used as an instrument of fraud. The leading cases in this state of Wendell v. Van Rensselaer, 1 Johns. Ch., 344, and Storrs v. Barker, 6 id., 166, illustrate the application of the principle.

In the first case the grantee of land holding a secret deed studiously concealed its existence, and knowing that the grantor was dealing with the land as his own, conveying parts thereof to third persons, and that they were making valuable improvements in reliance on the validity of their titles, he meanwhile standing by and making no sign, was held to be estopped from setting up his deed against the subsequent grantees of the original owner. In the second case a father who, on the death of a married daughter, became by law vested by descent with the title to lands owned by the daughter, but which she by her will had undertaken to devise to her husband, was held to be precluded from asserting bis title against the grantee of the husband, the father having encouraged the husband to sell and the grantee to buy, and having assured the purchaser that he had no title by inheritance by reason of the devise. The devise was in fact void by reason of the coverture of the wife, and although the father in advising the purchase acted in good faith, supposing at the time that the devise was legal, the chancellor applied the doctrine of estoppel on the ground that having encouraged the purchaser to buy, “ equity and policy equally dictate that he and not the purchaser ought to suffer.” In the one case there was notice that the grantor of the defendant was conveying the land, and fraudulent silence, and in the other active intervention and procurement, which, though innocent in intention, would be fraudulent in result if the party was permitted to set up a right inconsistent with the title of the husband under the devise. According to the general rule a fraudulent purpose or a fraudulent result lies at the basis of the doctrine of equitable estoppel. Story Eq., § 1546. A party is concluded from denying his own acts or admissions, which were expressly designed- to influence the conduct of another and did so influence it, and where such denial will operate to the injury of the latter. Nelson, J., Welland Canal Co. v. Hathaway, 8 Wend., 483.

An estoppel may arise although there was no designed fraud on the part of the person sought to be estopped. The cases of Storrs v. Barker, supra, and Continental National Bank v. National Bank of Commonwealth, 50 N. Y., 575, were cases where there was no intent to mislead, but where what was said was intended to influence the action of the other party and did influence it, and a duty rested upon the party giving the information or making the statement, if he spoke at all, to have ascertained the actual facts so as not to have misled the other party to his prejudice. An estoppel may arise also from silence as well as words. But this is only where there is duty to speak, and the party upon whom the duty rests has an opportunity to speak, and knowing the circumstances requiring him to speak keeps silent. Viele v. Judson, 82 N. Y., 32; Hamlin v. Sears, id., 327; N. Y. Rubber Co. v. Rothery, 107 id., 310; 12 N. Y. State Rep., 53.

It is impossible we think to find in the facts of the present case the essential elements of an estoppel in pais against the plaintiffs, concluding them from asserting their title to the premises in controversy. In 1853, when the Glovers purchased the lot, the oldest child of Ambrose W. Thompson was seventeen years of age.' The wrong perpetrated by the father in inducing the Glovers to purchase and pay for the land was consummated without the knowledge of the children and when they were ignorant of their rights in the property. So, also, when in 1857 the Glovers built upon the lot, there is no pretext that the children knew of the sale to the Glovers, or that the Glovers were in possession or claimed the title or that the building was being erected, nor indeed is there any evidence that the children then had any knowledge of the existence of the lot in question, or that any property had descended to them from their mother.

If the doctrine of estoppel can be invoked against the plaintiffs, it rests upon the fact that having subsequently ascertained that the Hudson street lot had descended to them from their mother, and that their father had wrongfully conveyed it, they neglected for many years to give notice of their claim to the Glovers- or their grantees, and that meanwhile Smith, the grantee of the Glovers, had conveyed the lot to the present defendants, who, in 1882, expended $3,000 in improvements on the premises, all these persons being ignorant of the fraud and supposing that the title under the deed to the Glovers was valid and undisputed. When the plaintiffs first knew that the Hudson street lot belonged to them is left in doubt The declaration of trust recited that the mother at her death was seized in fee “ of a certain house and lot on Hudson street,” which on her death descended to her children. There is no evidence that the daughters ever saw this declaration of trust, or indeed knew of its existence, prior to 1868, when they joined in the deed of the Bye property to Bonney, and the fact that they then knew its contents is a mere inference from that act. The declaration of trust, assuming that they then were informed of it, gave no information as to what particular property on Hudson street was owned 'by their mother, or that their father had conveyed it in fraud of their rights, or to whom the conveyance had been made. In 1872, one of the daughters seems to have then known that her step-mother had sold the property by passing herself off as the first wife. The daughters were not bound at the peril of losing their land to seek out and notify the Glovers and their grantees • of their title. They had no present right to the possession of the property. The life estate of the father passed by his deed and did not terminate until 1882. It does not appear that the daughters had any information at any time prior to the father’s death as to whom he had conveyed the lot, nor the subsequent deeds. They resided for many years away from Hew Tork, and never came in contact with the parties claiming title under the deed to the Glovers. They had no notice who was in possession of the lot, nor that the parties in possession contemplated making improvements thereon. In fact no improvements were made after they were apprised of their rights, except those made by Simpson in or about 1882. The building which constituted the principal addition in value to the lot was erected by the Glovers in 1857.

We know of no authority which would justify the application of the doctrine of estoppel to bar the assertion of a legal title to real property, under circumstances such as are disclosed in this case. The owner of property which another has assumed to convey without authority is not precluded by mere silence from subsequently claiming it. There must in addition have been both an occasion and a duty to speak, and it must appear that the omission to speak, upon opportunity being presented, was intentional or in negligent disregard of the plain dictates of conscience and justice. It is not necessary that the duty to speak should arise out of any agreement, or rest upon any legal obligation in the ordinary sense. Courts of equity apply to the case the principles of natural justice, and wherever these require disclosure they raise the duty and bind the conscience, and base upon the omission an equitable forfeiture to the extent necessary to the protection of the innocent party. The mere fact that another may act to his prejudice, if the true state of things is not' disclosed, does not render silence culpable, and mere inaction in such a case is not sufficient. Bigelow- on Estoppel, 595.

The true" owner owes no duty of active diligence to protect the other party from injury. There must be a standing by and encouragement, or at least an acquiescence on the part of the true owner in acts inconsistent with his right, knowing that the other party, acting under a false impression, is about to do what will result in his injury. See cases, supra. The doctrine of estoppel in pais is inapplicable in this case for two reasons: First, the daughters had no knowledge of the facts until after the principal grievance and injury under the father’s deed had been suffered, and after the facts came to their knowledge they did nothing to influence the conduct of the purchasers, nor did they maintain a culpable silence, such as authorizes a court of equity to base relief thereon, and second, for the reason that neither the Glovers nor any of their grantees have been misled or deceived by any act or word of the plaintiffs, nor have they relied upon any alleged “ substitution of property,” or upon any appearance or holding out by the plaintiffs inconsistent with the actual truth. The security of legal titles to real property, and the uniform policy of the law, require that the doctrine of equitable estoppel, when invoked to bar the legal title to land, should be cautiously applied, and only when the grounds for its application are clearly and satisfactorily established. Trenton Banking Co. v. Duncan, 86 N. Y., 222.

The remaining defense, that the proceeds of the sale to the Glovers went into the purchase of the Murray Hill property and afterwards into the Rye property, and that the plaintiffs accepted the latter property in substitution for their interest in the Hudson street lot, is much more serious. These facts were found by the trial judge, and we are concluded by the findings if they are sustained by evidence. In the case of Broomall v. Me Callion, 6 Cent Rep., 715, decided in Pennsylvania, several brothers and sisters in possession of land descended to them from their father, one of them bearing the same name as the father, personating him and passing off the property as his own, conveyed it without the knowledge of his co-heirs, in exchange for other land, to a purchaser who was deceived by such identity in name, and the other heirs, on being informed of such exchange, removed with the brother to, and took and remained in possession of the land conveyed ' to him in exchange, and it was held that by so doing, and without giving notice of their title to the purchaser, they were estopped from setting up as against the purchaser want of title in their brother to the property conveyed by him. It was also held in Goodman v. Winter, 64 Ala., 410, that where a tenant for life sells and conveys in fee in good faith, believing he has power to do so, and the remainderman accepts a portion of the purchase money as compensation for his interest, or if the proceeds of the sale are invested by the tenant for life in other lands, taking the title to himself for life, with remainder as before, and the remainderman accepts such conveyance with full knowledge of the facts, in either case a court of equity will at the instance of the purchaser compel the remainderman to convey to him, or bar the remainderman from asserting his legal estate in the lands so sold and conveyed.

Where one without title or authority from the real owner assumes to sell and convey the land in fee, and the true owner, knowing the facts, consents to, and does accept the proceeds of the sale in full satisfaction of his interest, this ought in qquity to operate as a confirmation of the unauthorized sale and preclude the real owner from asserting his legal title. The sale in' the case supposed may be treated as his act, or at least it may operate in connection with the receipt of the purchase money as an agreement on his part to sell to the purchaser and as a payment by the latter to the true owner of the consideration.

The doubtful point in this defense in the present case arises from the weakness of the evidence tending to show that the proceeds of the sale of the Hudson street lot went into the Rye property, and also as to the other element, viz.: that the children, knowing the facts, consented to accept the Rye property in substitution for their interest in the Hudson street lot The transaction was, in its origin at least, clearly to the disadvantage of the children. The trust in the Rye property was created by the father without the consent or knowledge of the children, except the son Ambrose. It may be assumed that a court of equity, if it had been applied to in behalf of the infants for authority to exchange the Hudson street lot for the Rye property, subject to a mortgage of $15,000, which they had no means to pay, would not have authorized the exchange. The evidence of the acceptance by the daughters of the Rye property for the Hudson street lot rests mainly upon the fact of their joining in the deed to Bonney and in the admissions proved to have been made by the daughter Mary, that advances were made to the children by Stewart, which was the consideration of the deed to Bonney, his assignee.

The execution of the deed by the daughters was subject to explanation. If they joined in the deed at the request of the father, as a means of restoring to him the land, or to enable him to carry out the contract of sale to Stewart, made on a consideration passing between him and Stewart, then the act of the daughters would not seem to be inconsistent with a repudiation of the trust

The record title of the Rye property was vested in the children by operation of the conveyance to Ambrose, and the declaration of trust, and their conveyance would be necessary to make a good title of record. On the other'hand, their act was consistent with the prior acceptance by them of the substituted provision. The matter is left unexplained by any evidence on the part of the plaintiffs. Heither Ambrose, the son, nor his surviving sister,’ was put on the stand to explain the circumstance.

We have then (1) a conveyance by the children of the Rye property, in form a conveyance of the fee, for an expressed consideration of $60,000, acknowledged in the deed to have been received by the grantors; (2) the finding of the referee, in his report on the distribution of the surplus arising oñ the foreclosure of the Dix mortgage, of the circumstances connected with the contract of sale to Stewart and the subsequent deed to Bonney; (3) some evidence, though slight, that the consideration of the Stewart contract was money advanced by him to the daughters on the credit of their interest in the Rye property, and finally we have the fact that no explanation was attempted to be given by the surviving children of the circumstances and motives which led to the execution of the deed, and further a delay by the plaintiffs for five years after the death of their father before bringing their action.

Hpon this state of the record we cannot say that there was no evidence upon which to base the finding that the children accepted the Eye property in lieu of their interest in the Hudson street lot, with knowledge of their rights, and if this was the fact the defense was, we think, sustained. If a new trial should be taken by the plaintiffs under the statute, and a different result on the facts should be reached, the question might then arise whether under the peculiar circumstances equity would not require that the purchasers should be indemnified out of the property for the enhanced value by reason of the improvements made by the defendant Simpson and his grantors. Upon this point we express no opinion. It may also be a question whether Ambrose Thompson does not stand in a situation different from his sisters in respect to claiming any interest in the Hudson street lot.

The exception of the plaintiffs to the evidence given on the part of the defendants tending to show that the Glovers purchased in good faith, believing that they were acquiring a perfect title, was not well taken. It was proper to permit the defendants, in aid of their equitable defense, to show the circumstances under which the Glovers purchased.

The j udgment should affirmed.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Follett, Ch. J.

license: Public Domain

text:
    David Miller, Resp’t, v. Sarah F. Mead, App’lt.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    Mechanics’ lien—Contract to sell—Covenant as to priority op lien.
    Defendant entered into a contract with one G., by which the latter was to build certain houses on defendant’s land and she was to make advances therefor and upon completion of the buildings convey the land to G., and by which it was agreed that any mechanic's lien Sled should be subject to defendant’s interest in the premises. Held,, that defendant was the owner within the meaning of the statute; that the contract was proof of her consent to the_ erection of the buildings and rendered her interest subject to such liens as might be filed for labor and materials, and that such liability was not affected by the stipulation as to priority of lien.
    Appeal from a judgment of the general term of the supreme court of the first judicial department, affirming a judgment entered on the decision of a special term.
    May 25, 1887, the defendant owned in fee land in the city of New York extending from One Hundred and Twenty-seventh to One Hundred and Twenty-eighth street and bounded on the east by Madison avenue, and on the west by a line drawn parallel with and thirty-five feet west of th^e avenue. On the date mentioned, she and one Herman Gierke entered into a written contract by which she covenanted to sell, and he to purchase the premises for $70,000. Gierke also covenanted to complete, on or before October 1, 1887, six dwelling houses, then begun on the south part of the lands, in a style specified in the contract, and costing at least $6,000 each. The defendant covenanted to advance Gierke $21,000, payable by instalments as the work progressed, to aid in the erection of the buildings. It was mutually covenanted that, when the houses were completed the defendant would convey the land to Gierke, and that he, concurrently therewith, would give-his bonds to secure the payment of the purchase price $70,000, and the $21,000 to be advanced, secured by mortgages on the. premises. The ■ contract contained the following provision: “And it is agreed that should any mechanics’ lien be filed against the property herein described during the progress of said buildings, or against any part thereof, * * * such mechanics’ lien. * * * shall be subsequent to the liens and claims of the party of the first part, (Sarah E. Mead): but in such eases, or either of them, it is agreed that all payments or advances due or to become-due under this contract may, at the option of the party of the first part (Sarah E. Mead) be withheld until such lien or liens:, shall be removed and discharged of record, or said party of the first part may, at her option, apply such payments or advances to-the payment and discharge thereof, or said party' of the first part, (Sarah E. Mead) may, at her option, in the case of a mechanics’' lien, deposit an amount sufficient to cover said lien or liens, or give security under the statute, and contest the same at the cost, and expense of the party of the second part (Herman Gierke) and deduct the same from -said payments or advances; and the said party of the first part (Sarah F. Mead) expressly reserves the-right to make the said payments or advances, or any part of the said payments or advances, before they or either of them may be due and payable, or out of the order in which they or either of them may become due and payable.”
    June 9, 1887, Gierke, with the assent of Sarah F. Mead, assigned the contract to Edward Grippentrog. On the 20th of June, 1887, David Miller (the plaintiff) and Grippentrog, entered into a written contract by which Grippentrog contracted to fur- . nish stone for the completion of the buildings for $9,060, under which, prior to January 24, 1888, the plaintiff furnished stone of’ the value of $1,500, and the price thereof not being paid, a lien was filed on the 24th of January, 1888, pursuant to chapter 342: of the Laws of 1885, to foreclose which this action was brought.. Upon the trial the court found that the plaintiff had furnished,, under the contract, stone used in the buildings of the value of' $1,500, which was adjudged to be due, and a judgment was entered foreclosing the lien, with costs; from which the defendant, appealed to the general term, where it was affirmed, and thereupon the defendant appealed to this court.

      E. N. Taft, for app’lt; William E. Stewart, for resp’t.

       Affirming 36 N. Y. State Rep., 155.

   Follett, Ch. J.

It is provided by chap. 342 of the Laws of' 1885, the general Mechanic’s Lien law of this state, as follows: •

“ Sec. 1. Any person * * * who shall hereafter perform any labor or service, or furnish any materials which have been used, or which are to be used in erecting, altering or repairing any house * * * with the consent of the owner, as hereinafter defined, or his agent, or any contractor or subcontractor, or any other person contracting with such owner, to erect, alter or improve, as aforesaid, within, any of the cities or counties of this .state, may * * * have a lien for the principal and interest ■of the price and value of such * * * material upon such house * * * and upon the lot * * * upon which the same may stand or be intended to stand, to the extent of the right, title and interest at that time existing of such owner, whether owner in fee, or of a less estate * * * or of the owner of any right, title or interest in such estate, which may be sold under an execution.”

“ In cases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner shall be deemed to be owner within the intent and meaning of this act until the deed has been actually delivered and recorded conveying said premises pursuant to such agreement.” Sec. 5.

The parts of the statute above quoted have been recently construed by the court of appeals Schmalz v. Mead, 125 N. Y., 188; 34 N. Y. State Rep., 779 ; which affirms 15 Daly, 223 ; 23 N. Y. State Rep., 117, the facts of which were as follows: The defendant, the owner in fee of the land involved in the case at bar, contracted in November, 1885, to sell and convey it to George Kuhn for an agreed price, and to advance to the vendee a certain sum in instalments to enable him to erect buildings of a kind agreed to thereon. The vendor covenanted that when the buildings were completed he would convey the land and take the grantee’s bond, secured by a mortgage on the land, for the payment of the purchase price and the sum to be advanced for building purposes. Under this contract the vendee entered into possession and began the erection of the buildings, but soon failed, and abandoned his purchase. The vendor had performed her part of the contract, and no advances were due from her when the lien for materials furnished the vendee was filed or foreclosed.

The vendor defended the action to foreclose the lien on the grounds: (1) That the contract of sale and for the erection of buildings was not sufficient evidence of the owner’s, vendor’s, consent within the statutory meaning of “the consent of the owner ” that the buildings be erected: (2) That only the interest of George Kuhn, vendee and contractor, could be subjected to lien: (3) That the lien could attach only to advances due from her, if any, and not to her interest as vendor in the real estate. These defenses were overruled and the lien was held to attach and bind the vendor’s interest in the realty. Schmalz v. Mead differs from the case at bar only in the fact that the contract of sale and for building did not contain the stipulation contained in the agreement under consideration and quoted in the .statement of facts, that if any mechanics lien was filed it should be subject to the lien and claim of the vendor. The defendant’s relation to and interest in the land constituted her the owner thereof within the meaning of the word “ owner ” as defined in the fifth section of the mechanics lien law, Schmalz v. Mead, svpra, and her estate could be subjected to the liens of persons furnishing labor or materials for the construction of buildings erected thereon with her consent. By the contract entered into-May 25, 1887, between Mrs. Mead, then the owner of the fee, and Gierke, and by him assigned to Grippentrog with her consent, she not only agreed to sell and thereafter convey the land,, but bound the vendee to build within a specified time six houses according to plans which had been agreed on, to cost not. less than $6,000 each, she agreeing to advance $21,000 for the purpose of partly paying the cost of their erection; which contract was proof of her (the owner’s) consent that the buildings-be erected, and rendered her interest in the premises subject to such liens as might be filed for labor and materials furnished for the construction of the houses, unless in some way relieved from liability by the stipulation that any mechanic’s lien should be subject to her interest in the property. Schmalz v. Mead, supra; Rollin v. Cross, 45 N. Y., 766; Husted v. Mathes, 77 id., 388; Burkitt v. Harper, 79 id., 273 ; Otis v. Dodd, 90 id., 336.

The stipulation in respect to the priority of liens did not destroy the owner’s consent that the houses should be built, nor diminish its effect, nor did it lessen the absolute obligation resting upon “the vendee to build them. It was not the design of the parties to accomplish any such results, hut simply" to circumvent the statute and defeat the rights given by it to persons furnishing labor and materials for the work, which design could not be accomplished by such a stipulation as against-persons not in privity with either of the parties to it who should, without notice of the stipulation, furnish labor or materials for the work.

The judgment should he affirmed, with costs.

All concur.


author: Potter, J.

text:
    Terence McCracken, App’lt, v. William C. Flanagan et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    Service—Publication—Affidavit.
    Simple averments in the- affidavit that the defendant is a non-resident and cannot he found within the state are not alone sufficient to support an order for the service of a summons by publication. The affidavit should state facts showing that due diligence to find and serve the defendant within the state has Ken exercised.
    Appeal from a judgment of the general term of the supreme-court for the second judicial department, affirming a judgment of that court at special term rendered and entered upon the decision of the court without a jury.
    The action was ejectment, brought to recover the possession of two lots of land situate at Mount 'Vernon, Westchester county, by the plaintiff McCracken, alleging ownership. The answer alleged ownership in defendants and possession by them as such owners.
    Upon the trial the plaintiff relied upon a conveyance of the premises in question from one Henry Kahle, who, on the 12th day of December, 1867, was the owner of such, premises, to the plaintiff and one Patrick McCracken, by deed executed on the 17th day of May, 1869. The said Patrick, by his will, devised his interest in the same to the plaintiff.
    The defendants derived title to the premises through a deed from the sheriff of Westchester county, made to one Lawrence Cartan on the 25th day of January, 1869, and by mesne conveyances from Cartan to one Edward Flanagan, and from the latter to the defendants.
    The sheriff’s conveyance was made in pursuance of a sale of said premises in an action determined by judgment in favor of "Lawrence Cartan and others against said Henry Kahle in the supreme court
    A warrant of attachment was issued in the action against Kahle on the ground that he was not a resident of the state of New York. ’A'notice of the pendency of the action was duly filed, and an order was procured from the county judge of Westchester county for the service of the summons issued as the commencement of this action by publication. Kahle, the defendant in that action, did not appear therein. The application was made under § 135, subd. 3, of the Code of Procedure, then in force

      Eugene S. Ives, for app’lt; James W. Covert, for resp’ts.

       Reversing 24 N. Y. State Rep., 439.

   Potter, J.

The affidavit upon which the judge granted the order for service of the summons and complaint upon the grantor of plaintiff was as follows:

“ City and County of Hew York, ss.:

“ Minott M, Silliman, being duly sworn, says that he is one of the attorneys for the plaintiffs in the above entitled action. That a summons has been issued in this action against the defendant therein. That defendant is a non-resident of this state, nor can be found therein, but has a place of residence at Matewan, in the state of Hew Jersey. That this action is brought to recover the sum of $964.32, and the ground of the plaintiffs’ claim in this action is a promissory note made by said defendant for $727, and due December 13, 1866, and $1.81 for protest of said note, and $2.55, interest due thereon, and the further sum of $231.66, with $1.30, interest due thereon on a book account for goods sold and delivered by said plaintiff to said defendant, which said several sums still remain due and unpaid.

“That said defendant has property, consisting of real estate, situated at Mount Yernon, in said county of Westchester and state of Hew York.”

The affidavit is made by one of plaintiffs’ attorneys, and though it embraces several quite diverse subjects, it nevertheless imports unqualified knowledge in respect to all of them.

The sole question sought to be raised, upon this appeal by the appellant arises upon § 135 of the Code of Procedure, which is in these words: “ Where the person upon whom the service of the summons is to be made cannot, after due diligence, be found within the state, and that fact appears to the satisfaction of the court or a judge thereof, or of a county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this state, such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases: Sub. 3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action,” which precedes the specifications of the class of cases in which service of the summons other than personal may be made.

It would seem that by a just construction of that section certain facts are required to be made to appear to the satisfaction of the court or judge before granting the order for this exceptional mode of service of process upon the defendant in the action, viz.: that such person cannot, after due diligence, be found within this state, and that a cause of action exists against such defendant in certain respects.

There is no question that the affidavit in this case makes it appear that a cause of action exists against the defendant, and the nature of it *But does the affidavit make these facts to appear, viz. : that the defendant cannot, after due diligence, be found within the state? This language fairly imports two facts, viz,: the exercise of due diligence to find the defendant within this state, and the failure to find him through the exercise of such diligence.

Assuming that it was competent for the affiant to depose that the defendant could not be found within the state, will such statement in the affidavit suffice for the proof of the exercise of due diligence to find the defendant, or is due diligence necessarily to be imported'into the affidavit, or to be inferred from the statement therein that the defendant cannot be found within the state? If that was the case, the legislature would doubtless have been satisfied to have the affidavit state that the defendant cannot be found within the state, and not have superadded thereto the phrase “after due diligence.”

Besides, it is a fundamental rule that when facts are to be found by a judge or jury, the evidence of the existence of the requisite facts must be presented, and not the conclusion or inference of the affiant or witness that the requisite facts exist If this were not so, the judicial function of' the court or jury would be superseded, and the conclusion of the affiant or witness would be substituted instead of the judgment of the court or j™y-. . . .

. . . It is plain from a consideration of the law that jurisdiction of a court to render a judgment against a party to an action is ordinarily acquired by the personal service of process, as well as from the phraseology of § 135, that the order for a different mode of service may only be granted upon proof by affidavit of the existence of certain facts, and hence the fact and the mode of establishing it is jurisdictional.

How the fact to be proved is that the defendant cannot be found in the state after or through due diligence used for the purpose of finding the defendant in order to make personal service of the summons upon him. The order, which is based upon the affidavit, and is in its nature and office an adjudication that due diligence has been used to find and serve the defendant personally, contains no statement in respect to diligence.

We will now turn to the decisions of the courts upon this point and see whether they indicate any departure from the rule as above stated. In the case of Kennedy v. The New York Life, etc., 101 N. Y., 487, cited in the opinion of the learned general term in this case, and which was an action to foreclose a mortgage upon real estate, the affidavit upon which the order of publication was made stated that the defendants “ cannot, after due diligence, be found within this state, they being residents of other specified states,” “ that the summons herein was duly issued for said defendants, but cannot be personally served upon them by reason of such non residence.” The affidavit in the case cited states, in the language of the statute, that “ the defendants cannot, after due diligence, be found within this state” * * * “but cannot be served personally upon them by reason of such non-residence.”

The affidavit in the case under consideration entirely omits the words “ after due diligence,” or to state that any degree of diligence whatever had been used to find the defendant. If it were competent for a party to state that he has used diligence or due diligence, then the affidavit in the case cited might be held sufficient, especially in connection with the further statement that they cannot be served personally upon them by reason of such non-residence.”

In the case of Carleton v. Carleton, 85 N. Y., 313, this court held that an affidavit stating “ that the defendant has not resided within the state of New York since March, 1877, and deponent is informed and believes that the defendant is now a resident of San Francisco, California,” was insufficient to confer jurisdiction. The affidavit in the latter case, like the affidavit in this case, entirely omits the averment of due or any diligence, and has the like averment of the non-residence of the defendant The opinion in theetwo cases, 101 N. Y. and 85 N. Y., supra, was written by the same judge and was concurred in by all the members of the court, and moreover the opinion in the 101 N. Y. expressly reaffirms the opinion in the 85 N. Y., and maintains there is a distinction between the affidavit in the two cases. But the same distinction exists between the case at bar and the case in 101 N. Y. that exists between the case in 85 N. Y. and 101 N. Y., supra. The reasons and comments contained in the opinion in 85 N. Y. are applicable to the case at bar, and need not be here repeated.

The case of Jerome v. Flagg, 48 Hun, 351; 15 N. Y. State Rep., 827, is in line with the case of Kennedy v. The New York Life, etc., 101 N. Y., supra, and the affidavit was held sufficient upon the ground that the expression in the affidavit “ that said defendant cannot with due diligence be served personally within the state ” must be regarded not solely as a conclusion of law, but as a statement of fact tending to show that due diligence had been used.

To the same effect is the case of Seiler v. Wilson, 43 Hun, 629; 7 N. Y. State Rep., 254, and the distinction is made and followed between the Kennedy case, 101 N. Y., and Carleton case, in 85 N. Y., supra, and Lockwood v. Brantly, 31 Hun, 155, and Bixby v. Smith, 3 id., 60, and Easterbrook v. Easterbrook, 64 Barb., 421.

This question, in Bixby v. Smith, supra, arose collaterally in an application to be relieved from, a contract to purchase a title affected by this alleged defect The affidavit in the case cited stated that six of the defendants reside at Selina, in the state of Alabama, and one of the defendants at Greenville, in that state. “ There is no statement in the affidavit that these defendants could not be found within the state after due diligence, nor is there anything to show that any effort had been made to find them. The affidavit rests upon the naked assertion- of non-residence. The order, in form, follows the affidavit. It recites that it appeared to the satisfaction of the court that the defendants named are non: residents of the state and reside at the places named in the affidavit. The order fails to recite that it also appeared to the satisfaction of the court that the defendants could not, after due diligence, be found in this state. There is nothing to indicate in the' order that the judge or court passed upon that question; and nothing was laid before the judge calling for his determination of that question. The order, it appears, was made by myself at chambers, in the haste and pressure of business at that court, relying on the experience of the attorney, in this class of actions, in the preparation of such papers and orders. I am unable to see any ground upon which the order can be treated as valid. A part of the defendants named as nonresidents did not appear in the action, and as to them the judgment is' inoperative.”

It is, from an examination of this statute and the decisions in relation to it, pretty evident that some degree of diligence must be exercised" to find the party; and what is a due degree depends upon circumstances surrounding each case, and that the simple averments in the affidavit that the defendant is a non-resident and cannot be found within the state are not alone sufficient to support an order for the service of a summons by publication. Those facts do not imply that any diligence has been exercised to find and serve the defendant personally with process. It needs no argument to show that the averment in the affidavit that the defendant cannot be found in the state does not tend to prove the exercise of due diligence to find the defendant; for the statute in question not only requires that it be stated in the affidavit that the defendant cannot be found, but expressly requires the averment that he cannot be found after due diligence. Hence the statute forbids that due diligence may be implied from the statement that the defendant cannot be found within the state.

In view of the decisions above referred to, and the cases therein referred to, we are constrained to a different conclusion from that expressed in the opinion of the learned general term in this case, “ that the title of the defendant’s grantor under the sheriff’s deed to him in pursuance of the sale under the judgment was valid, and that the defendant derived a good title from his grantor. The plaintiff, therefore, took no interest in the property under the devise in the will of McCracken, because the grantor of his devisor had been divested of the title by the sale under the judgment against him in the attachment suit”

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

All concur, except Brown, J., not sitting.


author: Brown, J.

text:
    Fannie Fruhauf, Resp’t, v. Henry M. Bendheim, App’lt.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    1. Vendor and purchaser—Undisclosed incumbrance—Lease.
    Plaintiff’s husband and assignor contracted to purchase of defendant certain premises, which was to be conveyed subject to “existing tenancies and subject to a lease to one T., expiring May 1, 1889." It appeared that said lease contained a covenant for renewal for an additional two years. Held, that such covenant constituted an incumbrance which justified the purchaser in refusing to take title.
    2. Same—Existing tenancies.
    In view of the fact that the lease was specifically mentioned in addition to “ existing tenancies,” and the fact that T. was lessee only of the ground floor, the term ‘ ‘ existing tenancies " must be held to have reference to the occupants of other portions of the building and not to cover the lease.
    3. Husband and wipe—Transfer of interest in land contract.
    A deed is not essential to transfer the purchaser’s interest in a contract for the purchase of land, but it will pass by assignment, and such interest may he assigned by a husband to his wife.
    Appeal from a judgment of the general term of the first judicial department affirming a judgment entered upon a verdict directed by the court.
    This action was to recover $1,000 paid by Jacob L. Fruhauf to the defendant upon a contract between them, whereby the defendant agreed to convey to said Fruhauf, by warranty deed, certain real estate on Eighth avenue, in the city of New York, and also to recover damages for the breach of said contract.
    The deed was to h'ave been delivered on August 3,1886, and on August 4th Fruhauf, by an instrument in writing, sold and assigned said contract to the plaintiff, who was his wife. The time for the execution of the contract was extended to August 13th, and on that day defendant failed to appear, and performance upon his part was refused. Subsequently, on August 17th, defendant tendered a deed, but it was not accepted owing to alleged defects in the title.
    By the agreement the property was to be conveyed subject to “ existing tenancies and subject to a lease to Claus Tibkins, expiring May 1, 1889.”
    It appeared upon the trial that Tibkins was in possession of a part of the premises under a written lease, dated April 27,1886, which lease contained a covenant for renewal for an additional term of two years.
    It was admitted on the trial that Jacob L. Fruhauf paid defendant $1,000 under the terms of the contract at the time of its execution ; that the lease to Claus Tibkins was still in force, unchanged in any respect, and that the reasonable expense of searching the title to the premises in question was $250, and that plaintiff had agreed to pay that amount.
    The court directed a verdict for the plaintiff for $1,250 and interest, amounting in all to $1,343.75.

      Julius J. Frank, for app’lt; Lewis Sanders, for resp’t

       Affirming 24 N. Y. State Rep., 759.

   Brown, J.

The covenant of renewal, contained in Tibkins’ lease, was one which ran with the land and was inforceable against the grantee of the lessor, and constituted an encumbrance which justified the purchaser in refusing to take the title under the contract.

The argument that the term “ existing tenancies ” covered the Tibkins’ lease cannot prevail in the face of the particular specification in the contract of that lease as expiring on May 1, 1889..

The case does not disclose what was intended to be covered by" thexpression “ existing tenancies,” but inasmuch as Tibkins was the lessee of the store floor of the building only, it is sufficiently apparent that existing tenancies ” must have had reference to the occupants of the other portions of the building.

Such tenancies the purchaser agreed to accept whatever their terms, but as to Tibkins’ lease there was a definite agreement that it expired May 1, 1889, and the purchaser was not obligated to take the property subject to a lease that might continue two years longer. By reason of the existence of the covenant to renew contained in that lease the vendor was unable to perform his contract according to its terms.

The objection that the assignment from Jacob Fruhauf to the plaintiff was void was properly overruled.

Although a husband could not at common law contract with his wife, he could make her a valid gift of a chattel or of a chose in action.

In equity the property given was treated as the wife’s separate estate, and the courts would protect her in its enjoyment even against her husband, and her title for-the purpose of protecting her possession was regarded as clothed with the incidents of a legal estate.

But if as to gifts made before the enactment of the statutes of 1860 and 1862 her title was equitable only, under those statutes it ripened into a legal estate and vested the property in her. But separate ownership of property by the wife is now possible, and she may take the legal title to personal property by a gift from her husband. 1 Parsons on Contracts, 345 ; 2 Kent’s Com., 163 ; Savage v. O'Neil, 44 N. Y., 301; Rawson v. Penn. R. R. Co., 48 id., 212; Seymour v. Fellows, 77 id., 178; Armitage v. Mace, 96 id., 538; Whiton v. Snyder, 88 id., 299.

It is true that under a contract for the purchase of land the vendee’s interest for many purposes is regarded as real estate, but the interest is an equitable one solely. The legal title remains in the vendor.

A deed is not essential to transfer the purchaser’s interest in the contract, but it will pass by assignment, and we see no objection to the gift of such an interest by a husband to his wife.

Upon the delivery of the contract and a proper assignment thereof, the rights existing in the purchaser thereunder passed to her.

Ho other exceptions require discussion.

The judgment should be affirmed, with costs.

All concur.


author: Vann, J.

text:
    Hugh Flynn, Resp’t, v. J. Monroe Taylor, App’lt.

      (Court of Appeals, Second Division,

      Filed October 6,1891.)

    Nuisance—Obstruction of street.
    Defendant constructed a platform ninety feet long in front of its factory, extending across the entire sidewalk, and occupied the rest of the sidewalk with its teams for three or four hours each day. On account of the obstruction pedestrians were obliged to pass around it over the carriageway, and to a ce: tain extent travel was diverted to the opposite side of the street. Held, that such use of the sidewalk was unreasonable; that such diversion of travel would be presumed to cause special damage to plaintiff, who kept a retail store on the same side of the street, and that he was entitled to maintain an action to abate the nuisance.
    Appeal from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment entered upon the decision of the court without a jury.
    Action to recover damages for creating a nuisance and to restrain its further continuance.
    Sackett street is a public street in the city of Brooklyn, sixty feet in width and used by several thousands of pedestrians every day. During and prior to the year 1887, the defendant owned a parcel of land with a frontage of about 140 feet on the south side of said street, on which there was a large building covering the whole lot, where he carried on the business of manufacturing saleratus and other articles of domestic consumption. At the same time the plaintiff owned certain premises on the same side of said street about eighty feet farther west, but in the same block, where he kept a retail liquor store. Several years prior to the commencement of this action the defendant, with the consent of the city authorities, erected on the sidewalk in front of said factory a platform ninety feet long, two feet ten inches high and four feet eight inches wide. Said platform projects its entire width across the sidewalk and is used by the defendant for loading and unloading trucks, which for that purpose stand several hours each day upon that part of the sidewalk that is not covered by the platform. The sidewalk and street, together with the bridge over the gutter between, are well-paved and on the same level, and there is’ usually no difficulty in walking around the obstructions on the sidewalk by going out into the street. While the trucks are standing across the sidewalk backed up to the platform for the purpose of receiving or discharging a load, the horses are generally turned around parallel with the building to enable pedestrians to pass around over the carriageway through the street. There are two railway tracks in the street'and the nearest rail is about eight feet from said sidewalk. The defendant also has platform scales on the sidewalk at one end of his factory that he uses for weighing coal in such a manner that the scales, coal carts and horses attached ' sometimes occupy the entire width of the sidewalk.
    The platform of the scales is on the same level as the pavement and forms a part thereof, and when not in use presents no obstacle to passers by. Sackett street is a thoroughfare to the Hamilton avenue ferry, and is used mainly for business purposes in the neighborhood in question. The defendant has no access to his factory except from said street and across said .sidewalk. The. platform is a permanent obstruction, and the other obstructions • named occupy the sidewalk on the average about three and one-half hours each day. When the horses and trucks are on the sidewalk pedestrians are compelled either to climb over the platform, or walk around through the street. Owing to said obstructions travel was, to a certain extent, diverted from the sidewalk in front of plaintiff’s premises to the opposite side of the street, where there was a good walk, free from obstacles. The trial court found that the passage of the public along said sidewalk was thus unnecessarily and unreasonably interrupted and interfered with by the defendant, and that in consequence thereof the rental value of plaintiff’s premises had been diminished, and he had sustained special damages tó a nominal amount. Judgment was ordered for the damages so found and for an injunction restraining the defendant “ from unnecessarily or unreasonably obstructing the sidewalk " in front of said factory, but a stay of proceedings for three months was directed to enable him to change the arrangement of his premises, if he so desired.

      Frederick C. Dexter, for app’lt; Josiah T. Marean, for resp't.

       Affirming 26 N. Y. State Rep., 649.

   Vann, J.

The owner of land abutting upon a public' street is permitted to encroach on the primary right of the public to a limited extent and for a temporary purpose, owing to the necessity of the case. Two facts, however, must exist to render the encroachment lawful:

1. The obstruction must be reasonably necessary for the transaction of business.

2 It must not unreasonably interfere with the rights of the public. Callanan v. Gilman, 107 N. Y., 360; 12 N. Y. State Rep., 21; Welsh v. Wilson, 101 N. Y., 254; 1 N. Y. State Rep., 19.

The foundation upon which the exception seems to rest is that it is better for the public to suffer a slight inconvenience than for the adjacent owner to sustain a serious loss. Any .unnecessary or unreasonable use of a street, however, is a public nuisance and is declared by statute to be a crime against the order and economy of the state. Penal Code, § 385. A remedy for the wrong against the public may be found in the indictment of the offender, or in a suit by the proper officer in behalf of the people to compel him to abate the nuisance. People v. Loehfelm, 102 N. Y., 1; People v. Horton, 64 id., 610; People v. Cunningham, 1 Den., 524; The Attorney-Generals. The Cohoes Co., 6 Paige, 133 ; Wood on Nuisances, § 729; Willard’s Eq. Jur. (Potter’s ed.), 389, 401.

Whenever any person sustains a special and peculiar loss in consequence of an unlawful obstruction to a public street, he may maintain an action in equity in his own behalf for damages and an injunction. Such was the case of Callanan v. Gilman, supra, upon which the courts below relied in rendering judgment in this .action, and which we also regard as analogous and controlling. In that case, as in this, the obstruction consisted in unloading trucks over a sidewalk, and pedestrians were forced by the inconvenience to take the opposite side of the street The proof of .special damages sustained by that plaintiff was slight, but the court held that direct proof of peculiar damage was not needed if the circumstances showed it, and that he suffered some special •damages not common to persons merely using the street for passage was declared to be too obvious for reasonable dispute. The right to maintain the action does not depend on the amount of the special damage, provided the plaintiff suffered some material injury peculiar to himself. Pierce v. Dart, 7 Cow., 609.

We think that in a populous city whatever unlawfully turns the tide of travel from the sidewalk directly in front of a retail .store to the opposite side of the street is presumed to cause special damage to the proprietor of that store, because diversion of trade inevitably follows diversion of travel. The nature of this case was such that.the amount of damages could not be shown, and hence the remedy at law would not only be inadequate, but would lead to a multiplicity of suits.

While the defendant was doubtless careful to interfere with the rights of the public no more than was necessary for the convenient transaction of his business with the facilities that he had, ¡still he could not lawfully supply the defects in his premises by virtually monopolizing the sidewalk for several hours every day. As the court said in Rex v. Russell, 6 East, 427, he “ could not legally carry on any part of his business in the public street to the annoyance of the public,” nor could he “ eke out the inconvenience of his own premises by taking in the public highway.” Rex v. Jones, 3 Camp., 230.

Whether a particular use of a street is an unreasonable use or not is a question of fact depending on all the circumstances of the case. Hudson v. Caryl, 4A N. Y., 553; St. John v. The Mayor, 6 Duer, 315 ; Wood on Nuisances, § 251.

The trial court found as a fact that the defendant’s use of this sidewalk was an unreasonable interference with the passage of the public along the same. Hence, he was properly held guilty of creating a nuisance, for the habitual use of a sidewalk or highway in an unreasonable manner to the serious inconvenience of the public is a nuisance per se. 16 Am. & Eng. Encyc. of Law, 937. The evidence was ample to support the finding, as the use of the. sidewalk by the defendant was systematic and exclusive during a substantial part of the business day.

The primary purpose of the sidewalk was violated and the people-who wished to use it to walk upon were compelled to walk around through the street and avoid the passing vehicles as best they could. This is scarcely denied by the learned counsel for the defendant, who contends that no unreasonable use or occupation of the sidewalk was shown so far as the plaintiff is concerned and that he cannot complain, although the public might. It is true-that no direct interference with the plaintiff’s premises or business. was shown. The pecuniary loss to him was caused by the indirect effect of the obstructions to the sidewalk upon the public;. but when an unreasonable use of a public highway is shown and it also appears that such unreasonable use causes special damages to an individual, he has a personal right of action to compel the-abatement of the nuisance. Doolittle v. Supervisors, 18 N. Y.,. 155; Corning v. Lowerre, 6 Johns. Ch., 439; Spencer v. London, etc., R. R. Co., 8 Simons, 193; Sampson v. Smith, id., 272; Crowder v. Tinkler, 19 Vesey, 617.

While the general welfare is promoted by manufactories such as the defendant carries on and they should not be interfered with for light or trivial causes, still the right of the public to the use-of the sidewalk is paramount and he must so arrange his business-as not unreasonably to interfere with it. The decree against him conforms in every respect to the precedent established by this court, in Callanan v. Gilman, 107 N. Y., 360, 373 ; 12 N. Y. State Rep., 21, when it modified the judgments of the courts below by restraining against an unnecessaiy or unreasonable obstruction. While the language of the injunction is somewhat indefinite owing-to the care taken not to interfere with important private-, rights, still a reasonable man will have little, difficulty in determining what is a reasonable use of a public street. A prudent man will resolve doubtful questions in favor of the public and against himself and the wrong to the public is the basis of the plaintiff’s right to relief, although a special injury to himself was also required before he could succeed.

We see no reason for reversing this judgment, which is, therefore, affirmed, with costs.

All concur.


author: Bradley, J.

text:
    The Nason Manufacturing Co., Resp’t, v. Benjamin F. Stephens, App’lt.

      (Court of Appeals, Second Division,

      Filed October 6, 1891.)

    Contract—Extra work—Damages.
    Plaintiff - contracted to build for defendant an extension to bis water tower, defendant agreeing to keep the water at such height as might be desired for convenience of the workmen. The work was not completed at the time specified, but was afterward done, but defendant refused to. keep the water at the height required by plaintiff. If that had been done the work could have been done on a raft; as it was not, plaintiff was obliged to construct scaffolding. In an action to recover on the _ contract and for such extra work, Held, that it was incumbent upon plaintiff to prove that the deviation increased the expense of doing the work, and that in ihe absence of evidence as to the cost of constructing the raft, it was error to allow a recovery of the entire expense of constructing the scaffolding.
    Appeal from judgment entered on order of the general term ■of the supreme court in the second judicial department, affirming judgment entered upon report of a referee in favor of the plaintiff.
    On about the 1st of July, 1883, the plaintiff entered into con"tract with the defendant to construct for the latter an extension to the stand pipe or water tower of the Coney Island Water Works at Gravesend on Long Island from the top of it, then seventy-two feet from the ground, to the additional height of forty feet, in the manner and of the dimensions particularly specified, and complete it by the 1st day of August then next, for the sum •of $1,240; and the defendant undertook to maintain the water level in the pipe at such height as might be desired by the plaintiff for the convenience of its workmen. The plaintiff did not within that time proceed to the performance of the work. But after-wards the plaintiff caused the addition to the tower to be constructed, and the work done upon it was completed about the 1st of November. 1883. The referee found that the agreement of the parties was modified and the time for the completion of the work extended; but that the defendant declined to maintain the water level in the tower at the height required by the plaintiff for its workmen; and that as the consequence the expense of $849.75 was incurred by the plaintiff in the construction of scaffolding on •the outside of the tower to enable the plaintiff to perform the work ; and for that sum with interest in addition to the contract price the referee directed judgment for the plaintiff, less $175 allowed to the defendant by way of counterclaim for partial default of the plaintiff in the performance of the contract

      Charles N. Morgan, for app’lt; Theodore F. Miller, for resp’t

       Reversing 21 N. Y. State Rep., 428.

   Bradley, J.

While the performance by the plaintiff of the contract was a condition precedent to the right of recovery, the conclusion of the referee that it was substantially performed had ■the support of evidence, and therefore must, for the purposes of this review, be deemed conclusive. Smith v. Brady, 17 N. Y., 173; Woodward v. Fuller, 80 id., 312.

The main question has relation to the claim allowed the plaintiff for the expense of the scaffolding constructed on the outside of the tower to support the workmen as they proceeded to and with the construction of the forty feet extension of it above the seventy-two feet tube upon which it was erected. The evidence tended to prove that the purpose of the maintenance of the water level, as provided by the contract, was to enable the workmen to stand upon a raft in performing the work; and the matter of the practicability of that method of supporting them for that purpose, questioned by some of the evidence, is not here for consideration. If that means had been made available, the expense of providing the float would have been incurred by the plaintiff; and as in the distance of ten feet upward the reduction of the diameter of the tube to be constructed was from twenty feet to six feet, the adaptation of the raft to the diminishing surface of the column of water for it to rest upon would, as the work proceeded for that, distance, have been necessary. It does not appear what the expense would have been of providing and suitably adapting this to the purposes of a platform for the workmen, nor was any allowance made for it by the referee as against the expense of the outer scaffolding. Upon the exception to his conclusion to that effect, arises the question whether the recovery for the full amount of the latter was properly permitted.

As the plaintiff had not proceeded with the work within the-time provided by the contract for its performance, the defendant was at liberty to treat the plaintiff’s default as terminating its rights under it. But there is evidence tending to prove that when called upon after the time for the completion of the work had expired, the defendant stated that he could not furnish the water level as before agreed; and that the plaintiff would have to provide and use an outside scaffolding; and when informed that the-expense of the work to the plaintiff by that means would be-greater than the method of an inner float would require, the defendant expressed his opinion that it would be no more, but nevertheless advised that the work of extension of the tower be performed.

There was no modification of the contract except such as resulted from the refusal of the defendant to maintain the water level in the tower and in the consequent necessity of the scaffolding recognized by the parties. Nor does it appear that the defendant would not, within the time stipulated for the performance of the contract, have maintained the requisite water level. The-plaintiff, however, upon the findings of the referee, having the-support of evidence, was entitled to recover the expense of the work and scaffolding in excess of that which would have been incurred by it if permitted to use the float. The price the defendant undertook to pay the plaintiff included the cost to the latter of the means to be provided by him for doing the work, aided so-far as it might be by the maintenance of the stipulated water level. And there was some evidence to the effect that the expense to the plaintiff of the work, if the inner support of the workmen had been permitted, would have been no greater than that required for it by the use of and including the outside scaffolding. The-plaintiff’s claim was governed by the contract so far as the work performed could be traced by it, and beyond that the plaintiff was-entitled to the quantum meruit. Dubois v. Delaware & H. C. Co., 4 Wend., 285: Koon v. Greenman, 7 id., 121; Hollinsead v. Mactier, 13 id., 276; Clark v. Mayor, etc., 4 N. Y., 388. The contract, as first made, determined the price of the entire work. But by reason of the deviation from the method originally contemplated by the parties to render the work of construction of the extension of the tower accessible to the workmen, the contract did ■ not furnish any guide to the cost of that rendered necessary for such purpose, and the plaintiff necessarily had to resort to evidence of the cost of it if it sought, as it was entitled, to recover for any additional expense occasioned by such deviation. This increased expense was for the plaintiff to show by proving that the means it was required to adopt for the purpose were more, and how much more expensive than would have been those which it was contemplated when the contract was made could be provided for the men to work from upon the tower.

Upon this subject the court in Koon v. Greenman said': “ Where it does not appear that the work was rendered more expensive to the plaintiff than was contemplated when the contract was made, or than it otherwise would have been in consequence of the improper interference of the defendant or of his neglect or omission to perform what by the contract he was bound to do, the contract prices should be held conclusive between the parties.” This rule would not be applicable to extra work merely. There it would be sufficient to prove its cost or value with the facts entitling the person doing such work to charge for it. But in the present case there was a deviation authorized and pursued, and, as the consequence, the contract embraced work which the plaintiff was not required to perform. It was for the plaintiff to prove that the deviation to which he consented rendered the work done more expensive, and if found to be so, the plaintiff was entitled to the benefit of the difference. ■ But the rule applied was otherwise, and by allowing to the plaintiff the full amount of the contract price in addition to the cost of the substituted work it was permitted to recover for work not performed. How much does not appear, nor can it here be determined. For that reason the exception before referred to was well taken. And the plaintiff must take a new trial, unless it elects to abate the recovery in an amount equal to that allowed on account of the expense of the scaffolding. The judgment should, therefore, be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulate to deduct from the recovery $849.75, with interest on that sum from August 1, 1883, and in that event the judgment be so modified, and as modified affirmed, without costs in this court to either party.

All concur.