author: Spencer, J. Barbour, C.J.

text:
    GEORGE H. BEYER, Plaintiff and Respondent, v. BENJAMIN MARKS, Defendant and Appellant.

      [Decided December 31, 1870.]
    The following general rules are well established in this State as relating to contracts for land, and actions for specific performance of the same: First, a purchaser may insist upon a good, valid, and unincumbered title. Second, he is entitled to receive substantially from his vendor all the property for which he contracted. Third, if he obtains such a title, and obtains substantially the property for which he contracted, by the conveyance offered, a court of equity will enforce performance on his part; otherwise not.
    A court of equity, in the enforcement of a specific performance of a contract, where it appears there was a slight deficiency in the estate, or a variance in the description, or an incumbrance that can and should be the subject of compensation, must consider and provide for the same in the decree. Compensation follows as a matter of right, and must be provided for in the decree in all proper cases.
    When specific performance of a contract is decreed, and it appears from the evidence that compensation should have been given, a failure of the court or referee to take evidence relating to the compensation, and the amount thereof, and to consider or provide for the same in the decree or report, is error.
    There are certain conditions or circumstances attendant upon every case of compensation—First, the deficiency, defect, or whatever is complained of, must be one of that character that can be made the subject of compensation or of consideration as damages; and second, in such a case compensation can be and should be decreed by the court, provided that it is also a case where he concludes that the purchaser would not have declined the contract had he known of the defect at time of purchase.
    Before Barbour, C.J., Freedman and Spencer, JJ.
    This action was to compel the specific performance of a contract for the sale to defendant by plaintiff of certain premises on the southwesterly corner of Sixth avenue and Seventeenth street, in the City of New York, consisting of two lots, in depth on each side 100 feet, and in front and rear, 46 feet, more or less, with buildings thereon, of which the plaintiff was the owner in fee.

      The counsel employed by the defendant to examine the title of the property, having caused a survey to be made, ascertained that the southerly extremity of the premises in Sixth avenue was distant 46 feet and 3 inches from the northerly corner on said avenue, while the deeds through which the title was derived conveyed but 46 feet, commencing on the southwesterly corner of Seventeenth street and Sixth avenue.
    He called the plaintiff’s attention to the fact some days before the time fixed by the contract for the delivery of the deed, and stated that if the fact was as appeared by the survey, it offered a valid objection to the title.
    The plaintiff stated that the fact was otherwise, and that he had a survey showing such to be the case, which he promised to exhibit to the defendant’s counsel.
    Although his attention was again called to the matter, he failed to produce any such survey.
    The defendant’s survey was made by an experienced surveyor, duly appointed, and was duly certified.
    On the day named for the delivery of the deed, the plaintiff tendered a deed by which he assumed to convey the premises in question, and demanded the performance by the defendant of Ms part of the contract.
    The defendant declined to receive the deed or to complete the contract, upon the ground that the plaintiff had not a good and complete title to all the property he had agreed to convey.
    The defendant thereupon declared the contract at an end by reason of the failure of the plaintiff to perform the same, and afterwards repeated both to the plaintiff and his counsel that the contract had been thereby rescinded.
    The plaintiff, notwithstanding, obtained a quit-claim deed of three inches of land, commencing 46 feet southerly from Seventeenth street in Sixth avenue, and running southerly three inches, and made a new tender to the defendant on the 28th of September.
    The defendant again refused to accept the deed, alleging as the reason for such refusal, firstly, the failure of plaintiff’s title ; secondly, the rescission of the contract; and, thirdly, the defect in the execution of the deed last tendered, the stamps on which had not been cancelled.
    The plaintiff thereupon commenced this action.
    The issues were tried before a referee, and a judgment having been rendered in favor of the plaintiff, the defendant filed exceptions to the report, and upon a case and exceptions brought this appeal.

      Mr. Stephen P. Nash for appellant.
    The referee erred in his finding that the plaintiff was on Sept. 15,1868, the owner in fee simple of the premises described in the contract.
    It appeared by the evidence that the plaintiff had no title, on September 15th, to any more than 46 feet on Sixth avenue, running from the southwest corner of Seventeenth street.
    It also appeared that the Sixth avenue frontage of the premises in question was 46 feet and 3 inches.
    Whether the encroachment was on the northerly or on the southerly side, it was an encroachment on property to which the plaintiff had no title.
    If on the northerly side, the encroachment was in the public street, and the plaintiff could not, by any subsequent proceedings, obtain a title to the land encroached upon.
    If on the southerly side, the plaintiff obtained no title to the land until ten days after Sept. 15th.
    The contract had then been rescinded in the plaintiff’s wrong, and the subsequent tender of a new deed to the defendant was nugatory.
    The referee erred in not finding that the plaintiff was unable, on the 15th of September, to convey to the defendant a good title to the premises which he had agreed to convey.
    The premises agreed to be conveyed were described in the contract by the street numbers.
    The deeds to the plaintiff conveyed only 46 feet on Sixth avenue. .

      • The premises described in the contract covered 46 feet three inches.
    The encroachment was on property to which the plaintiff had no title.
    He had no title to the strip on the south, and could not possibly have any title to the property on the north, which was a public street.
    The referee has found as a fact, that the northerly wall of the corner building encroached three inches on Seventeenth street.
    He has thus found that the plaintiff has no title to three inches of the property which he agreed to convey. .
    The portion of the property in respect of which the title fails, is probably the most valuable piece of the same dimensions on the entire plot. The wall on the Seventeenth street side is a substantial and an expensive one.
    The ground upon which it stands is a public street.
    The encroachment on the street constitutes a public nuisance.
    The corporation might maintain ejectment, and require the wall to be taken down, or, by more summary proceedings, might compel the owner to take down the wall as a nuisance.
    They might also mulct the owner in daily penalties for the encroachment, and have him indicted criminally for maintaining a nuisance.
    The plaintiff erected the building himself, and must have known of the encroachment. In fact, it appeared by his own testimony that he did know of it.
    He cannot be permitted, coming into court as a trespasser upon public and private property and rights, to enforce the performance of a contract in respect to the property which he thus wrongfully uses. He must do right and equity in order to be able to require equity from others.
    ' Tet, after erecting a building in the public street, not only in violation of law, but in violation of private rights, he asks the court to compel another and an innocent party to take the property in its unlawful position and to assume the penalties, risks, and liabilities, incident to the same by reason of his own wrongful acts (Guynot v. Mantel, 4 Duer, 86; Winne v. Reynolds, 6 Paige, 407; King v. Badeau, 6 Johns. Ch., 38).
    The referee should have found, that the defendant objected to the deed tendered on September 15, on the ground that the plaintiff could not convey a good title to all the property he had agreed to convey.
    The evidence showed clearly that this was the reason alleged, and that the objection did not, in terms, apply to a supposed encroachment on the southerly side.
    This objection was made as definite as it could be under the circumstances.
    The fact did not appear definitively as to where the encroachment was until the trial.
    The surveyors were not certain, and the parties were consequently in doubt.
    But even if the obj ection had related to a supposed encroachment on the southerly side, if it should afterwards appear that the encroachment did in fact exist, but was on the northerly corner, the objection would be sufficient.
    If the encroachment was of such a nature that it would be obviated, the plaintiff might claim that he should have had notice of its exact location, so as to enable him to perfect his title, but inasmuch as the defect of title could not have been remedied, in any event, it is of no importance as to what was said in regard to the loom of the encroachment.
    The referee should have found, that on the 15th of September the plaintiff declined to postpone the time for the completion of performance of the contract, and that thereby, by the election of the defendant, the contract became rescinded, and that no subsequent proceedings of the plaintiff to acquire title to property to which he had then no title, or to remedy defects in his title, would be available.
    Even if the plaintiff should take down his wall so as to do away with the encroachment, he cannot now compel the defendant to take the property.
    By his course on September 15, time became the essence of the contract; the defendant took advantage of the plaintiff’s default and rescinded the contract, and the plaintiff lost his right of action for a specific performance, even if he should afterwards be able to complete the contract on Ms part.
    The referee should have found that the plaintiff knew at the time he made the contract that Ms building encroached on the street.

      Mr. William Allen Butler for respondent.
    The referee having found as matter of fact, that the plaintiff was ready and willing to perform the contract according to its terms, and that the sole objection taken by the defendant was that the building Ho. 265 Sixth avenue encroached on the adjoming lot, and having also found that no such encroachment existed, and these findings being abundantly supported by the evidence, there is no just ground of exception to the report, or for reversing the judgment (Hoogland v. Wight, 7 Bos., 394; Lincoln v. Lincoln, 6 Rob., 525; Woodruff v. McGrath, 32 N. Y., 255). Even if the objection made by the defendant on the 15th September, the day-fixed by the contract for closing the purchase, that the building Ho. 265 Sixth avenue encroached on the adjoining lot, had been well founded, the defendant could not avail of it to defeat the performance of the contract, and it having been wholly obviated within a reasonable time, he was bound to perform.
    The alleged encroachment on the adjoining lot was the sole ground specified on behalf of defendant to completing the purchase. The plaintiff insisted that it did not exist and tendered Ms deed. The defendant refused to accept it But neither party was then in a situation absolutely to determine the mooted question of fact.
    The defendant could not have refused to perform if the objection had at the time been cured or shown to be untenable or to be capable of prompt remedy. Time was not the essence of the contract. Ho question of immediate possession was involved. The purchase was for investment. Both parties were, up to that time, acting in good faith with a view to performance, and no change of circumstances is shown. On this state of facts equity required the performance of the contract by the purchaser, irrespective of the stipulated time (Adams on Eq., p. 88; Wynn v. Morgan, 7 Vesey, p. 202; Matlock v. Butler, 10 ib., 292; Chamberlain v. Lee, 10 Sim., 414; King v. Wilson, 6 Beav., 124; Egerton v. Simonds, 1 Y. & Coll., 608; Earl of Durham v. Legard, 34 Beav., 511; Seton v. Slade, 7 Ves., 265; Seymour v. Delancy, 3 Cow., 446; Viele v. Troy & Boston R. R. Co., 21 Barb., 381). The objection was wholly untenable, irrespective of any question of fact as to the alleged encroachment.
    The contract called for the conveyance of the lots Eos. 265 and. 267 Sixth avenue. The conveyance to plaintiff gave him 46 feet, “more or less.”
    Ko adverse claim or title has been shown in respect to the alleged three inches, and no fact on which such adverse claim could be predicated.
    The fact that plaintiff’s buildings cover three inches more than 46 feet, does not of itself constitute a valid objection to the performance of this contract. There was no evidence of any better title, and the evidence of Mr. Keller and the execution of the deed for a nominal consideration show that no adverse title exists.
    To constitute a valid objection to the performance of a contract such as this, it is not enough to show a variation of two or three inches, but an adverse right or claim thereto must also be shown. And a trifling variation is never allowed to defeat performance (Winne v. Reynolds, 6 Paige, 407; King v. Badeau, 6 John. Ch., 38; Chamberlain v. Lee, 10 Sim., 444). But it was clearly established by the evidence, that there was no encroachment on the adjoining lot, and this having been the only substantial question involved, the findings of the referee are correct.
    There was no substantial conflict in the surveys or in the testimony of the surveyors. It was abundantly shown that the southerly wall of the building No. 265 Sixth avenue was on the southerly line of plaintiff’s lot.

      The fact disclosed at the trial in reference to the trifling projection of the iron-work on the sidewalk, while it explained the origin of the defendant’s mistaken claim, did not furnish any-ground of objection or defense.
    The projection in the street is only of the face of the iron column, twelve inches wide, and the brick work above the first story. The surveyors all say that corner buildings are apt to encroach somewhat, and the ornamental or accessory parts of all buildings on open spaces overlap a little. But no one complained of this or could or can complain. The plaintiff had a right to inclose and shut off permanently four feet of the sidewalk for an area, under the corporation ordinance. The. steps, cornices, and railings of all corner buildings are on the street. The objection to close a purchase of a corner lot and building in this city,- on the ground of a three-inch encroachment on the sidewalk of ironwork and upper brick-work, could not be sustained in any view (Corporation Ordinances, chap. 18).
    The test of the right to rescind a contract such as the one in question, is whether the ground of objection so far affects the subject-matter of the contract that it may reasonably be supposed that, had it been disclosed, the purchaser would never have entered into the contract (Flight v. Booth, 1 Bing., N. C., 377).
   By the Court:

Spencer, J.

Although I am not perfectly satisfied that this is a case where specific performance should not be decreed, yet I am clearly of the opinion that in case of such a decree, compensation should have been awarded.

In Dyer v. Hargrave (10 Vesey, 505), there was a bill filed for a specific performance of a purchase of land sold at auction. The particulars preceding the sale described the house as in good ■ repair, and that the farm was all within a ring fence. The defendant objected on the ground that this description was not true, and it was admitted that the facts in the case varied from this description, but that a minute examination would have disclosed the facts and discovered the defect.

The master of the rolls decreed a performance, and held that every variance from a description would not enable a man to resist the performance of a contract.

That if a man gets substantially that for which he bargains, he must take a compensation fqr a slight deficiency in the value.

In King v. Badeau (6 Johnson’s Ch. Reports), Chancellor Kent, referring to Dyer v. Hargrave, says, This case establishes what I apprehend to be the true doctrine on the subject,” and in the decree or order then made by the chancellor, he adopts this doctrine. In the case of King v. Badeau, two lots were sold together at auction, Nos. 42 and 43 Broome street. There were two buildings on No. 42, one in front and the other in the rear of the lot, both of which projected upon No. 43 about twenty inches. The lots were sold free from all incumbrances, except a lease of lot 42, which lease provided for the disposition of the houses at its termination.' The terms of sale stated that the buildings were situate on lot No. 42, but the fact was that they projected about twenty inches over and upon lot 43. The purchaser claimed that this variation of the condition or quality of the lots ought to vacate the sale. The chancellor held that this variation was not sufficient to justify the abandonment of his contract, but as it might diminish its value below what its value-would have been if such projection had not existed, he ordered a reference to ascertain the amount of such diminution in value (if any).

The rule or principle was discussed and fully recognized in the opinion of this court in Guynot v. Mantel (4 Duer, 94), wherein Justice Hoffman laid down as a general rule “ that a purchaser may insist upon a good, valid, and unincumbered title to the property for which he contracts,” and also “ that a purchaser is entitled to obtain substantially the property for which he contracted.”

From these cases, and others that I have examined, I conclude the following rules to be well established in this State:

Fwst.—A purchaser may insist- upon a good, valid, and unincumbered title.

Second.—lie is entitled to receive substantially, from his vendor, all the property for which he contracted.

Third.—If he obtains such a title, and by the conveyance offered obtains substantially the property for which he contracted, a court of equity will enforce performance on his part —otherwise not.

These general rules are not, in my opinion, modified or affected by those relating to compensation, which the court will enforce in all proper cases, in favor of the purchaser against the vendor, when specific performance has been or shall be decreed, as, for instance, in the case of a slight or immaterial deficiency in the estate, a variance of description, or an incumbrance affecting the title, as in the cases cited. The doctrine of compensation, as a rule in equity, follows these and like cases, in order to pay the purchaser for these slight defects, that in equity he may be entitled to, if in equity he should be compelled to fulfil the contract of purchase, and in such cases compensation follows as a matter of right, and, as I hold, must be provided for in the decree in all proper cases.

There are certain conditions or circumstances attendant upon every case of compensation:

First.—The deficiency, defect, or whatever is complained of, must be one of that character that can be made the subject of compensation, or of consideration as damages.

Second.—In such a case, compensation can be and should be decreed by the court, provided, hoioever (and this proviso seems to be expressly laid down by Justice Hoffman in Gruynot y. Mantel), that it is also a case where the court concludes that the purchaser would not have declined the contract had he known of the defect or matter complained of at the time of the purchase.

This doctrine of compensation was carried to an unwarrantable extent in the early English cases, and a court of equity should keep it entirely subservient to the general rules. As the doctrine is now held in this State, and as considered and reviewed by Sent and Hoffman in the cases cited, it is consistent with the rules of equity, and now stands upon a just and safe basis.

In all cases where compensation should be considered and given, the court should provide for the same, and receive evidence relating thereto, so that equity can be fully meted out in the decree. It is very clear, in my judgment, that if in this case the contract should be enforced, compensation should be awarded. If the referee had taken testimony relating to the same, it might more clearly and fully appear that it was not a case where compensation could have been made, and that performance should not have been decreed. As the case now stands, there is much force in the proposition that the defendant would receive substantially the property for which he bargained, and had he known the facts he would still have purchased, as there is also in the counter-proposition, that he has not received what he purchased, and had he known of the projection of this building into the street he would not have purchased,” etc., but I am confident that the referee erred in not providing for compensation after holding that the contract should be enforced, notwithstanding this defect or deficiency.

The judgment should be reversed, and a new trial ordered, with costs to abide the event, and the order of reference vacated.

Barbour, C.J.

(concurring). The contract between the parties in this case requires the plaintiff to convey to the defendant the property known as Nos. 265 and 267 Sixth avenue, and 100 and 102 West Seventeenth street, in this city, with the buildings thereon.”

It is conceded that the plaintiff owns and may convey all the land on which the buildings stand, with the exception of a small strip of ground in and constituting a part of Seventeenth street, upon which the iron columns supporting the corner building encroach about three inches, and over which the wall" itself, above the first story, projects the same distance.

It is obvious that the plaintiff designed, in good faith, to sell, and the purchaser to buy, not only the land upon which the buildings were, but the buildings themselves, with all the land on which they stood. It being clear that the vendor is unable to make a valid conveyance of all such land, the question is whether the purchaser is bound to take the plaintiff’s deed for such portion thereof as he can legally convey, in full satisfaction of the contract on the part of the latter.

If the overlapping of the building in question was an encroachment upon the property of an individual owner, as would have been the case had it extended three inches beyond the plaintiff’s southern line, the defendant, there can be no doubt, would not have been bound in law to accept*a deed conveying to him all the land owned by the vendor as a performance of the agreement.

The mayor, aldermen, and commonalty of the city of Hew York are not only the owners, in fee, of the streets laid out by the commissioners under the act of 1807 (Davies’ Laws, 460), and opened in accordance with the provisions of the statute of 1813 (Valentine’s Laws, 1190), but they hold the land covered thereby in and upon the trust that the same be appropriated and kept open for public streets forever ” (ib., 1198). It follows that the corporation not only may maintain an action of ejectment for the recovery of so much of the street as is covered by the building in question, as the owner of the fee, precisely the same as an individual might do, but that it is also charged, by a positive enactment of the legislature, with the trust, obligation, and imperative duty to keep the land free and open as and for a street forever; a trust or duty, it may be remarked, of which any cestui yue trust, interested in the question, or the attorney-general, may enforce the execution. Considering this, it appears to me that the deed offered by the plaintiff is, at least, as objectionable as it would be if the building rested upon and projected over the adjoining land of an individual to the same extent.

The referee has found, and, no doubt, correctly, that such encroachments upon the streets of the city are not uncommon; and he might have added that they have, in many instances, been tolerated by the failure to act, or silent acquiescence of the corporation and its officers. We have no right to assume, however, that the city authorities will not, at some future time, deem it necessary or proper to compel the removal of all obstructions from the streets, so as to have them open as such for their entire width, nor that the corporation will always refrain from enforcing its rights as the owner of the fee. We have simply to determine upon the legal and equitable rights of the parties to this controversy, and cannot, properly, thus speculate upon probabilities.

It is also true that the limited area of the corporation’s land occupied by the building is of but little comparative value. But, even if the value was so small as to bring it within the maxim “demi/nimis non cv/rat lex” which is, at least, doubtful, it is to be considered that the injury to the owner of the building, in case the corporation should enforce its rights, would not be measured alone by the value of the land, but as well, probably, by the trouble and expense of removing the wall or reconstructing it.

In order to entitle the plaintiff to recover in this action, he was bound to prove upon the trial, either that he had fully performed the provisions of the contract on his part according to the letter thereof, including the conveyance of that portion of Seventeenth street occupied by the building, or, to show by his evidence that the non-conveyance of the latter was not essential or material to the full performance by him of such contract; and as he has not done this, the principle upon which the numerous decisions have been made whereby decrees for specific performance have been passed, notwithstanding the failure or inability of the complainants to perform their agreements in certain unimportant and non-essential particulars, does not apply to this case.

I am, therefore, of opinion that the learned referee erred in directing a judgment for the plaintiff, and that such judgment should be reversed and a new trial awarded, with costs to abide the event.

In view of what I have said above touching the duty of the corporation under the act of 1813,1 deem it unnecessary to express any further opinion here touching the validity and effect of the license given by the corporation to the plaintiff to build an area, in so far as that license may have been intended to empower him to occupy permanently any portion of the surface of the street.


source: Caselaw Access Project

author: Spencer, J.

license: Public Domain

text:
    CHARLES M. MAYER, Plaintiff and Respondent, v. THEODORE APFEL and SIGMUND APFEL, Defendants and Appellants.

      [Decided December 31, 1870.]
    Contested motions will be entertained and heard only at the regular Special Term of this court, unless differently ordered by the judge holding such term.
    The practice of one judge vacating the order made by another, and hearing, and deciding the subject-matter heard and considered by another judge, deprecated.
    The power or authority for such a proceeding is bad in practice, and the cases where the power is exercised should be very extreme and exceptional, and has neyer beep, tolerated in this court.
    Before Barbour, C.J., Monell and Spencer, JJ.
    An order of arrest was granted in this action by Mr. Justice McCunn, in April, 1869, and the defendant Sigmund Apfel was held to bail thereon.
    The defendant moved at a Special Term of this court, held in May, 1869, by Mr. Justice McCunn, to vacate said order of arrest, and an order was thereon made that the motion be referred to A. J. Smith, as referee, to hear and report the facts involved in such motion, who reported the facts found by him, Sept. 23, 1869. The plaintiff took up said report and paid the referee his fees, and on the 30th September, 1869, served a copy of said report on defendants’ attorney, with a draft of a proposed order in the premises, and a notice of an application for such an order on said report, returnable on the 1st of October, 1869, at 11 a.m., before Mr. Justice McCunn.
    The latter justice was not holding the regular Special Term of this court at the time of said notice or on the return day of the same, but Mr. Justice Freedman, the justice assigned to said Special Term, was holding the same, but the parties appeared before Mr. Justice McCunn on the return day of the notice, and he entertained the argument and hearing of the same, and the following order was entered upon his decision in the same manner as if the motion had been heard and decided at Special Term:
    Superior Court, New York City.
    Ch. M. Mayer v. Theodore Apfel and Sigmund Apfel.
    At Chambers of said Court held at the City Hall, New York City, October 1st, 1869.
    Present—Mr. Justice McCunn.
    A motion having been made heretofore in this action by the defendant, Sigmund Apfel, to vacate the order of arrest heretofore granted against him, herein, and it having been referred by his honor, Mr. Justice McCunn, to A. J. Smith, Esq., as referee to hear and report upon the facts involved in such motion, and the said parties having, pursuant to such order of reference, appeared before such referee.
    And the said referee having duly made and signed his report in said matter, and addressed the same to this court.
    Now, on the coming in of the said report, and on motion of W. L. Flagg, Esq., attorney for the plaintiff in this action; J. Landesman appearing for defendants to oppose.
    It is hereby ordered that the said report of A. J. Smith, Esq., referee, as aforesaid, be filed with the clerk of this court, immediately upon the entry of this order, and that the said motion of the said Sigmund Apfel, defendant in said action, to set aside and vacate the said order of arrest, be and the same is hereby denied, with two hundred and fifty dollars costs and disbursements of said motions, reference, etc., to be collected by the plaintiff of the said defendants.
    A Copy.
    Jambs M. Sweeny, Clerk.

    At the regular Special Term held in October, 1869, by Mr Justice Jones, the defendants’ attorney, upon affidavit and the papers, moved to set aside the order last named, for irregularity.

      First.—That the said order was made upon, the decision of Hr. Justice HcCunn, while sitting in Trial Term, and not at the regular Special Term of the court, the latter being held at the time by Hr. Justice Freedman. That defendants’ attorney appeared before Hr. Justice HcCunn under protest, and urged the irregularity of the proceedings and his protest, and the matter was submitted on said defendants’ preliminary objections, and not otherwise.

    Second.—That said report of said referee was not filed before the making of said order, and defendant had no opportunity to file his exceptions thereto, and had no opportunity to be heard on the coming in of said report, nor on the argument, etc.
    And defendant claimed that the order should be set aside for these alleged irregularities.
    The plaintiff, answering to this motion, filed an affidavit of his attorney who argued the motion before Hr. Justice HcCunn, to the effect that the attorney for the defendant appeared before Hr. Justice HcCunn, and fully argued on the merits of the motion, and made no protest, nor any statement “ that he appeared and a/rgued said motion under protest, nor anything of the kind.”

    Hr. Justice Jones denied the motion to set aside the order for irregularity.
    From this decision of the Special Term, the defendants appealed to the General Term of this court.

      Mr. Willam L. Flagg for respondent.

      Mr. John Landesman for appellants.
   By the Court:

Spencer, J.

The learned judge who made the decision, upon which the order appealed from was made, states in his opinion that if the defendants’ attorney appeared before Hr. Justice HcCunn, and argued the motion to vacate the order of arrest, upon the report of the referee, that the decision of Hr. Justice McCunn, and the order entered thereupon, cannot be reviewed at Special Term, on a motion to vacate the same. That the remedy of the person aggrieved was by appeal. That the question as to whether the defendants’ attorney did so appear was a contested one. The defendants’ attorney in his affidavit stating that he did not, and the affidavit of the plaintiff’s attorney, and also the order entered, stating that he did so appear, and Mr. Justice Jones holding that the weight of evidence being clearly in favor of the appearance and argument without protest, or preliminary objection, he decides that the facts warrant his decision against the motion to vacate the order.

I think that the decision upon the facts at the Special Term upon this motion were clearly within the judgment and discretion of the justice holding the same, and cannot be reviewed by the appellate court.

I am also of the opinion that his conclusion of law upon the facts was also correct, and should be affirmed. The defendants’ attorney was not bound, by the rules and practice of this court at the time, to go before Mr. Justice McCunn, on this notice, and submit to the hearing of the same before him; yet if he did so, and argued the motion upon the merits, without protest, the said justice was authorized to entertain said motion, and to hear and decide the same. All the parties interested consented, by their action in the premises, that this motion should be heard before Mr. Justice McCunn, as if he was holding the regular Special Term, and thereby waived all irregularities. It has been held by several learned justices in the Supreme Court, and other courts of this State, that an order made at one Special Term, or by one judge, could be vacated and the subject-matter heard and decided at another Special Term, held by a different justice, thus substantially causing the decision of one judge to be reviewed by another judge of the same court. Whatever may be the power or authority for such a proceeding, it is in my opinion bad in practice, and the cases where the power is exercised should be very extreme and exceptional, and I believe this practice has never been tolerated in this court. I think I can speak for myself and assodates when I say that we feel bound to sustain and to abide by the dedsion of any one of the judges of this court, when acting within his power and jurisdiction as a judge, until the same shall be reversed by the General Term. A late decision of Mr. Justice Cardozo, at a Special Term of the Supreme Court of this district, to this effect, meets with my full and cordial approval.

The late amendment to the constitution, and the changes in the organization of the Supreme Court and the Court of Appeals of this State, will afford an opportunity to the judges of the courts of this State to establish an improvement in the practice of our courts, by securing uniformity and agreement in their decisions upon the practice, and by removing the evils of uncertainty therefrom, which has arisen from -the diversity of opinion among the judges upon the same points.

This court has lately adopted some rules (Rules 6, 7, 8 and 10, of March, 1870), in regard to the notice and hearing of motions, that very plainly inform the members of the bar that no contested motions will be entertained nor heard except at the regular Special Term, unless differently ordered by the judge holding such Special Term.

Rule thirty-two does not apply to this kind of report of a referee. The order of the Special Term should be affirmed with costs.


text:
    THE MASSACHUSETTS LIFE INSURANCE COMPANY, Plaintiffs and Respondents, v. JAMES CARPENTER, Defendant and Appellant.

      [Decided December 31, 1870.]
    Where the defendant mixed the money and funds of the plaintiffs with moneys and funds of his own and of third parties, and a portion of the moneys so mixed was subsequently stolen, but it was impossible to determine to whom the money stolen actually belonged—held, that this action of the defendant made him liable to account to the plaintiffs for the money received from them, even though a loss had occurred.
    By this act of the defendant the identity of plaintiffs’ money was lost, and the loss should fall on the defendant as a “ penalty ” for not keeping plaintiffs’ money separate from his own and that of others.
    Before Monell, McCunn, and Spencer, JJ.
    This cáse was tried before a referee.
    The action was brought to recover of defendant an alleged balance of account due from him as the agent of plaintiffs in New York.
    The only defense claimed and urged rested upon the fact that one William W. Cain, a clerk of' the defendant (employed, as defendant claimed, in the business of plaintiffs), had embezzled the amount sought to be recovered, and consequently defendant was not liable. That the plaintiffs had acted in the premises, and in their dealings with defendant, upon this theory, and were estopped from denying the same.
    The referee found in favor of the plaintiffs.
    The defendant appealed from the judgment entered upon the report of the referee.

      Mr. Amos G. Hull for appellant.

      Mr. John L. Cadwalader for respondents.
   By the Court:

Spencer, J.

I have examined critically the findings of fact and law made by the referee in this case, and conclude they are fully supported by the evidence, and that the judgment in this action should be affirmed. This fact clearly appears from the evidence, and does not seem to be contested, “ That the defendant mixed the money and funds of the plaintiffs with moneys and funds of his own and of third parties, at the office and the bank, and that the money embezzled by the clerk was taken from these moneys and funds, which were so mixed and commingled that it is impossible to determine to whom the money embezzled actually belonged at the time.” This action on the part of defendant made him liable to account to the plaintiffs for their moneys received by him, even admitting that a loss had occurred.

By the act of defendant the identity of plaintiffs’ moneys was lost, and the loss should fall upon the defendant, as Story justly remarks, “ as a sort of penalty ” for the agent’s negligence in not keeping his principal’s money separate from his own and that of others. When he chose to mingle these funds of the plaintiff with his own, etc., he made the same substantially his own, and incurred the liability and duty of answering to the plaintiffs for the full amount of the same. A loss of a part of these joint and mixed funds must be sustained wholly by the defendant.

The judgment should be affirmed, with costs.


author: Jones, J.

text:
    MARY J. TUCKER and Others, Plaintiffs and Respondents, v. JOHN MEEKS and Others, Defendants and Appellants.

      [Decided December 31, 1870.]
    Effect is to be given to the words, expressions, and provisions which carry out the evident intent of the instrument, rather than to those others which are inconsistent therewith. Those others are to be rejected as surplusage or repugnant, provided in so doing no rule of law is violated.
    If a word has no meaning in the connecbion in which it is used, and the whole instrument is looked into to ascertain in What sense it was used, such a meaning must be ascribed to it as will be consistent with other express provisions of the instrument; if none such can be found the word must be treated as surplusage.
    The doctrine that when a subsequent clause in a deed is repugnant to a prior one, the subsequent one will be held void, applies only where the subsequent clause prevents a prior grant from operating to pass the property, estate, or right which was thereby granted, in such clear and unmistakable terms as to leave no room for construction.
    The above rules applied to the construction of a trust deed containing peculiar clauses.
    Before Monell, Jones, and Freedman, JJ.
    Appeal from a judgment.
    This was an action of ejectment brought by the children of Sophia L. Davis to recover the possession of certain leasehold premises, situate in the city of Kew York.
    The defendants derived the title on which they rest under a deed made by Thomas E. Tucker, named as grantee in the instrument hereinafter mentioned, to George and Edward Curtis, pursuant to the direction and appointment of said Sophia L. Davis, also named in said instrument, and defend their possession by virtue of the title thus derived.
    The plaintiffs obtained a verdict at the Trial Term, and from the judgment entered thereon this appeal was taken by the defendants.

      Mr. Dexter A. Hawkins for appellants.
    The trustee, Tucker, and Mrs. Davis, intended to convey, and in terms did convey, on May 31, 1833, the whole unexpired part of the term of 63 years, in No. 63 Barclay street, and received the consideration therefor, $11,000.
    The words used by them are—“MB the rest, residue, a/nd remainder of the term of 63 years yet to come and unexpired, of and in that certa/in lot * * No. 63 Barclay street.”
    This deed of conveyance is in exact accordance with the terms a/nd strictly withdn the powers of the fourth trust clamse of the ' deed of Delacroix to Tucker.

    This clause is as follows:
    “And in trust further to make, seal, and deliver all or any deed or deeds of conveyance or partition for the said assigned premises that the said Sophia may in writing direct or appoint.”
    The “ said Sophia ” in writing, directed and appointed that Tucker should make, seal, and deliver this deed of conveyance for this part of the said assigned premises ; he did so ; 'and she, as further evidence of her direction and appointment to make, seal, and deliver this deed, and consent and approbation of all its terms, joined in it herself.

    A mere inspection of the fourth trust clause of Delacroix’s deed, and the appointment of Sophia and the deed of conveyance shows that on delivery of this deed to Greorge and Edward Ourtis, all the estate of plaintiffs, if any they had, in this lease of Mo. 63 Barclay street ceased and forever determined.
    The deed of Delacroix to Tucker created no valid trust in Tucker and Mrs. Davis, but it did create in them a valid general power in trust, and by virtue of this power in trust, the intentions of Delacroix can be lawfully effected.
    The prime object in the construction of every instrument is, to learn the intent of the parties thereto (2 Washburne on Real Property, 673; 3 Johns., 394).

      The construction must be made upon the entire instrument, and not alone upon any particular part thereof; and every part must, if possible, be made to operate, and every word to talce effect.

    In the construction of deeds, all doubtful or ambiguous portions are to be construed most strongly against the grantor, and in favor of the grantee.
    The rule governing the construction of conflicting clauses in deeds is the reverse of that which is applied to similar clauses in wills.

    All such special provisions and technical expressions in a deed, as are repugnant to the grantor’s intention, as gathered from the whole scope and drift of the instrument, must be rejected.

      In construing deeds, the situation and relation of the parties shall be tahen into consideration / also, the subject-matter of the contract.

    In all questions arising upon the construction of ancient deeds, the contemporary and subsequent acts of the parties thereto, as showing their understanding of the instrument, is considered the best evidence of intention.
    In this State, even more strongly than in England, the law leans against restraints upon alienation, and favors the right to convey la/nd by deed of the pa/rties beneficially interested (2 Chance on Powers, 577, note 3102 ; 1 Sugden on Powers, 79, § 10; 4 Kent’s Com., 325, 326, and 327, note C.; 16 Wend., 66, 67, 69, 191, and 198.
    Applying these well-settled rules of construction to the deed of Delacroix, it is clear that this deed conferred a General Power in Trust.

    Such a power, according to our statutes, must have three essential characteristics: Pirst—It must be an authority to do some act in relation- to lands which the owner, granting the power, might himself lawfully perform (1 R. S., 732, § 74). Second—It must authorize the alienation in fee, by means of conveyance or otherwise, of the lands embraced in the power, to any alienee whatever (1 R. S., 732, § 77). Third—Some person or class of persons other than the grantee of the power must be designated as entitled to the proceeds, or some portion thereof, resulting from the alienation of the lands according to the power (1 R. S., 734, § 94).
    The grant of Delacroix to Tucker contains these three essentials, hence it conveys a general power in trust.
    Delacroix, being sole owner of the term for years, could undoubtedly transfer the same to whomsoever he pleased; hence he could empower his grantee to do the same, and the proceeds are for persons other than the grantee, Tucker. This fulfils the first and third requisite for a general power in trust.

      No part of the deed, by cmy language whatever, either directly or indirectly, limits Tucker on Sophia’s appointment and direction as to quantity and quality of estate which he might convey. On the contrary, both the natmre and duration of the estates to be by him conveyed a/re left entirely to the discretion of said Sophia.

    The true construction of the last or 8th clause is this:

      “ That on the death of said Soqjhia the said Tucker, or Ms successor in the trust, was empowered to convey and should convey all and singular the said estates still remaining in his name to the children of said Sophia, and in case cmy of the said pieces of property under the fourth trust clause had been deeded away absolutely and converted into a principal or sum of money, then whatever there was remaining of said principal at her death should go and belong to her said children.”

    This evidently was the intent of the parties.
    This construction gives full force and effect to the entire instrument, and every part thereof, and makes every part and word take effect.
    It gives the doubt, if any there be, as the law of construction requires, against the grantor, and in favor of the grantee.
    If there be a conflict between the fourth clause and any subsequent one, it makes the precedent clause govern, and does not allow a power once granted to be destroyed by a subsequent claim.

      ■ It allows no special provision or technical clause to override the scope and drift of the instrument.
    It harmonizes with the situation of the parties and the subject-matter of the contract.
    It agrees with the contemporary and subsequent acts of the parties, which, in an ancient deed like this, is the best evidence of the intent of the parties to it.
    It imposes no restraint upon alienation, and herein is in accordance with the spirit and tendency of our laws and public policy which are against tying up property.
    It works equity to all parties. Mr. Davis’ family and these plaintiffs having already had, in money, the full price and value of the whole remainder of the term, it would be the height of in- ■ justice to now eject the purchasers and give this family the possession of the property of which they have had the whole purchase-money.

      Mr. John L. Cadwalader for respondents.
    The deed to the trustee, Thomas E. Tucker, intended to convey an estate for the life of Mrs. Davis only, with remainder to her children, and the power of sale and appointment given therein could only affect that life estate. Mrs. Davis having died, the plaintiffs are entitled to such remainder. The purpose must be to extract from the whole deed, by a sensible construction, the intention of the grantor, taking all the clauses together, and giving effect to all (Moore v. Jackson, 4 Wend., 58; Jackson v. Blodget, 16 John. R., 172; Jackson v. Myers, 3 John. R., 388; French v. Carhart, 1 N. Y. R., 96; Long Island R. R. Co. v. Conklin, 32 Barb., 381).
    The preamble of the deed sets out that the grantor had concluded to settle the estate for the use of Mrs. Davis during her life, and immediately after her death to the use of her children i/n equal parts.

    The inducement mentioned is for the benefit both of Sophia L. Davis and her children.

      A distinct absolute power of sale is given as to % portion of the property not affected by this action, excluding No. 63 Barclay street from the effect of it.
    The trusts in relation to No. 63 Barclay street, alone in question here, are as follows:
    It gives power to devise and to pay the proceeds to said Sophia L. Davis, “for and d/wring Tier natural life?

    To allow her to occupy any portion “ during Tier said natural Ufe.”

      To make and deliver all, or amy deeds of conmeya/nce, or pa/rtition, that the saM Sophia may in writing appoint, and to surrender old, and make new leases, “ so, however, that such partition and new leases shall follow the trusts herein and hereby declared.” The passage in italics is the only portion of the entire instrument which, even if taken by itself, gives any pretence of plausibility to the claim of defendants that the whole term could be conveyed.
    To bargain, sell, etc., the assigned premises to such persons as said Sophia shall by any writing appoint, “ so, however, that the trust infa/oor of the said Sophia’s children and their interest in the remainder be preserved?

    It gives a power to appoint agents, etc.
    It provides that upon the death of said Sophia, the trustee, or whosoever was assignee, shall in due form convey the premises to the children of said Sophia in equal parts, etc., “ it being the intention of these presents that the sañd Sophia shall take and receive the interest or income of these estates during her life, for her sole and separate use, and that the principal thereof remaining after her death, go and belong to her said children, as aforesaid, and for no other use, or purpose, whatsoever?

    It appears clear that no other view will harmonize the whole deed. The property conveyed to the trustee, known as No. 61 and 63 Barclay street, was held jointly with one Thomas Gibson, 63 in question was released by Gibson and 61 to Gibson, the two lots being owned by the grantor and Gibson as tenants in common. All clauses, therefore, in the trust deed looking toward a sale or partition absolutely, will be seen to be provisions for necessary partitions or sales, but always for the preservation of the interest of the children in the remainder.
   By the Court:

Jones, J.

The only question raised and argued at the General Term, on appellants’ behalf, and submitted for the decision of the court, is : Whether the person named and appointed as trustee in an instrument dated September 16,1830, and made and executed by and between Joseph Delacroix, of the first part, and Thomas Edward Tucker, of the second part, under their respective hands and seals, had power upon the request, direction, and appointment of Sophia Davis, to convey the said premises free and discharged of and from all right, title, and interest therein of the children of said Sophia.

The solution of the question involved depends on the proper construction to be given to the instrument.

There were two pieces of property conveyed by the instrument in question; one in Westchester county, the other (being the premises in question) in the city of blew York. ,

The provisions in relation to each are substantially different.

With regard to the Westchester property, the provision is to sell and corwey to such person, and for such consideration as said Sophia shall direct, and pay the proceeds to her on her own receipt as if she were sole?

The provisions in regard to the blew York property are:

1st. To let the same and pay the rent or proceeds to said Sophia, upon her own receipt, as if she were sole, for and during her natural life.

2d. To make and deliver all or any deed or deeds of corwey anee or partition, as said Sophia might direct.

3d. To surrender old leases and accept and make new ones, as said Sophia may direct; so, however, that said partitions and new leases shall follow the trusts herein and hereby declared.”

4th. To grant, assign, and set over the premises unto such person or persons as said Sophia might direct; “so, however, that the trust in favor of said Sophia’s children and their interest in the remainder be preserved.”

5th. That immediately on the death of said Sophia the trustee, or whomsoever to whom the trust estate in Barclay street, Murray and Chapel streets, and the lease from Bobert Swanton (being the Yew York property), may have been assigned, shall in due form of law convey the said Yew York property to the children of said Sophia in equal parts, the lawful issue of those deceased to take a parent’s portion, it being the intention of these presents that the said Sophia take and receive the interest or income of those estates during her life, for her sole and separate use, and that the principal thereof remaining, after her death, go and belong to her said children as aforesaid, and for no other use or purpose whatsoever.”

There are two other provisions which seem to apply to both the Westchester and Yew York county property. One, that said Sophia might use, occupy, and enjoy such part of the assigned property as she might require and see fit during her natural life; the other, giving the trustee, named in the instrument, power to appoint such agents to manage the trust estate as the said Sophia should direct and appoint.

The difference between the provisions respecting the Westchester county property, and those relating to the Yew York property, clearly shows that the grantor intended the disposition to be made of the one, as entirely distinct from that to be made of the other.

It is evident that the whole interest in the Westchester property was given to Sophia for her sole use and benefit; while in contradistinction to this she is given a life estate only in the Yew York property, the remainder limited on that life estate being given to her children.

It is, however, urged that in construing a deed effect must be given to all the words contained therein, and therefore effect must be given to the words “conveyance of” in the above second clause, and the words “ interest ” and “ principal thereof remaining ” in the last clause. It is then claimed that giving effect to them, while still bearing in view the intent that the children only shall have, and be interested in the principal, the design is found to be that the property may be sold, that its proceeds shall stand in its place, that Sophia shall receive the interest on said proceeds, that the principal may be applied to the support of the children, and “ the principal thereof remaining shall go to the children.”

Upon examining this proposition, we find that it is stating the doctrine too broadly to say that effect must be given to all the words in a deed. The correct statement is that a deed should be so construed as to give effect to all its words and provisions if possible, but that the construction should be on the whole instrument, and should, if possible, be so expounded as to give effect to the intentions of the parties (Moore v. Jackson, 4 Wend., p. 67).

And therefore the intent, when apparent and not repugnant to any rule of law, will control technical words; for the intent and not the words is the essence of every agreement (Jackson v. Myers, 3 I. R., 39).

Upon these general principles words have been rejected as surplusage (Sanders v. Betts, 7 Wend., p 287; Jackson v. Frost, 5 Cow., p. 346).

And the grammatical sense has been made to give way to its true intent, as when the word “ and ” has been construed into “or,” and vice versa (Jackson v. Joppin, 1 Wend., 397; Long Island R. R. Co. v. Conklin, 32 Barb., 381; White v. Crawford, 10 Mars., 183).

The rule then appears to be to give effect to the words, expressions, and provisions which carry out the evident intent of the instrument, rather than to those others which are inconsistent therewith, and either to reject such others as surplusage of repugnant, or to mould them into consistency with the intent, provided in so doing no rule of law is violated.

Under this exposition of the rules of law, bearing on the construction of instruments, let us first inquire what is the evident intent of the provisions of the instrument in question.

We find that as to the other property the grantor gave specific direction for the sale thereof, and as to the proceeds, viz.: that they should be paid to Sophia on her sole receipt, as if she were sole.

But as to the property in question (throwing out for the present the above-mentioned second clause) he directs that the trustee, or whomsoever to whom the trust estate may have been assigned, convey in due form of law, all and singular the trust estate to the children of Sophia, and is particularly careful to provide that all new leases of the premises, or any partition thereof (he being a tenant in common), shall follow said trust, and that any grant, bargain, assignment, transfer and setting over thereof should be in such wise, as that the trust in favor of said Sophia’s children and their interest in the remainder shall be preserved. All these are clear and distinct provisions looking to the property itself being conveyed to the children, and its preservation to that end.

This strong evidence of the grantor’s intent is sought to be overcome by the use of the phrase “ deed or deeds of conveyance or partitionand the use of the words interest ” and principal thereof remaining,” in the very clause which calls for a conveyance of all the property, and the recitals.

The word conveyance ” as used in the above phrase is meaningless, there is no such thing known in the law as a deed of conveyance.

(Willard on Real Estate, p. 419.)

Deed and conveyance are convertible terms; one means no more than the other. What sort of a conveyance is it that is thus authorized % Is it a conveyance of grant, of lease, or of exchange % It may be any one of them.

If we look at the whole instrument to endeavor to ascertain a specific meaning to be attached to the word, we find that in relation to other property the grantor gave a power to sell and in due form convey,” and gave directions for the disposal of the proceeds of the sale. If it had been the intention to give a power to sell, and convey pursuant thereto, in relation to this property, what is more natural than to pursue the same course as was just above pursued ? It cannot have been intended to authorize a conveyance without a sale and without consideration, as the effect of that would be to deprive the children of all interest without any compensation. The grantor then cannot be deemed to have the word as indicating a deed of grant.

Again, if a word used in an instrument has no meaning in the connection in which it is used, and we look into the whole instrument to ascertain in what sense it was used, we must ascribe to it a meaning which will be consistent with other express provisions of the instrument. If none such can be found the word must be treated as surplusage, for the court will not seek to give by implication a signification to a word of uncertain meaning, which will conflict with express words of a definite signification.

If, then, no meaning can be assigned to this word which will be consistent with the clause requiring a conveyance to the children, it must be treated as surplusage.

I think, however, a meaning can be assigned consistent with that clause.

The grantor, in the clause in which the word is used (and in subsequent clauses), treats of the subject of partition, while in the following clause he treats of conveyances other than for partition. Now, a partition may be effected in a proper case by a deed of exchange. Giving this signification to the word, as used in the clause in question, it renders it consistent with all the other provisions of the instrument. Again, the words, or partition,” may well be regarded as qualifying the previous general term of “ conveyance,” and indicating the kind of conveyance intended; on which theory of course the words “ conveyance or ” become surplusage.

I am satisfied that these words must be considered either as surplusage or as indicating a conveyance of exchange for the purpose of partition.

As to the use of the words principal thereof remaining,” the grantor had just before directed the whole principal to be conveyed to the children. Construed in reference to this the words may well be deemed as equivalent to the expression “ the principal thereof to remain and go to the children.” The expression used is awkward, but in one aspect it merely carries the same idea which the above form does. This construction is certainly preferable to one which, while being antagonistic to the first part of the clause in which it appears, would possibly have the effect of depriving the children of all interest in the property. It should be remembered further, that no provision is made for the use or disposition of any part of the proceeds of the principal during Sophia’s life, whereby a balance might be left after such use or disposition.

The word interest ” is, it is true, ordinarily used in the sense of a percentage paid for the use of money. It is, however, included in the word that follows it, income,” which is a term of more extended signification. It means no more. TaMng the two words in connection, the intent as shown thereby is that Sophia shall receive the profit coming in from the use of the property, or in case of a sale from the use of the proceeds which should be substituted for it. It may be said that the use of the word contemplates the possibility of sale; so would the use of the word income. But if it does, there is no reason for referring it to the proceeds of a sale by the trustee, inasmuch as the property being held in common, there was a possibility of a sale under decree in partition.

There is nothing in the recital which requires such construction to be given as will authorize a conveyance in such form as will deprive the children of a right to the conveyance of the whole.

That recital is as follows :

“ Whereas, the said Joseph Delacroix has, on account of the destitute situation of his daughter, Sophia, the wife of Morgan Davis, concluded to settle, for her sole and separate use, the estate and property hereinafter mentioned, to enable her to support herself, and to educate and bring up her infant children for and during the natural life of the said Sophia, and immediately after her death the then remaining estate and property to the use of her children, in equal parts, the issue of those deceased to receive a parent’s portion, which said estate and property the said Joseph deems of about the same amount in value as that which he intends by his will to devise to his other children.” , /

This recital indicates the general design the grantor had in view ; but it does not point out the particular mode in which he intended to carry out that design.

The mode which he did adopt was to give Sophia the Westchester property out and out, and to give her the income arising from the New York property, leaving the last mentioned property, and that alone, to go to the children; for it will be observed that there is no provision that on Sophia’s death the Westchester county property, or any then remaining proceeds thereof, should go to the children.

I am, therefore, of opinion that the clear intent of the instrument is that the New York property should not be sold by the trustee ; nor should the same be conveyed in any manner except to Sophia’s children, on her death, and that it should be conveyed to the children on the happening of that event.

The question now arises: Will the carrying out this intent violate any rule of law ?

It is claimed that a settled rule which obtains in the construction of deeds will be violated, viz.: that where a subsequent clause is repugnant to a prior one the subsequent one will be held void.

- This principle is sought to be applied to the present case, thus: All the clauses looking to a conveyance of all the New York property to the children, are subsequent to the clause authorizing any “ deed or deeds of conveyance or of partition, as the said Sophia may. in writing direct or appoint.”

If, then, they are construed as depriving her of the right of appointment, they are repugnant to the clause giving such right, and consequently they cannot be so construed.

The principle thus invoked has no application to the present case.

In the eases which enunciate this doctrine it appeared that the subsequent clause would prevent a previous grant, made in such clear and unmistakable terms as to leave no room for construction, from operating to pass the property, estate, or right so granted.

In such cases the question was whether the grant or the subsequent clause should fail. Choice had to be made between the alternatives. There was nothing on which to determine the choice, except the position of the clauses.

The doctrine was therefore established as to such cases, that as the grantor had made his grant he should not be allowed to subsequently destroy it.

But the rule did not prevail where there was room for construction. Thus, if the grant be in general terms, and the subsequent clause except a particular thing thereout, the exception is good, although the thing excepted may be covered by the general terms, for there is still sufficient left for the grant to operate on.

Thus, if there be a demise of a parsonage with lands and woods except the woods, the exception is void, for otherwise the grant of the woods could not operate. If, however, the woods had not been specially mentioned, the exception would have been good; for although the word lands include every thing thereon, yet they may be granted without including any particular thing that may be thereon; therefore, although the woods are excepted, still there is enough for the grant to operate on, viz., the lands without the woods (Moore, 881).

To the same effect is Bacon’s Ab., Title Grant, p. 527.

In the present case the estate granted to the grantee will not be destroyed or in any wise affected by striking out the whole clause in which the words in question occur. The provisions made subsequent to the granting of the estate are but directions as to how that estate shall be disposed, and the question is as to which of these directions shall prevail.

The principle suggested by appellants’ counsel does not therefore apply to this case as a positive rule of law. Even if it did apply, still it would afford no warrant for holding those subsequent clauses which look to the conveyance of the whole of the Hew York property to tlie children to be void, for the prior clause does not give a power to convey to the prejudice of the subsequent one in so clear and unmistakable a manner, nor is the instrument so devoid of data as to leave no room for construction except such as can be founded on the position of the clauses.

If this prior clause gave in a clear and unmistakable manner a power to convey on the appointment of Sophia, and by the conveyance to destroy the power given by the subsequent clause to convey to the children, and there was nothing to determine which power should have the precedence, except the positions in the instrument of the clauses conferring them, I should most certainly hold, in analogy to the doctrine urged by appellants’ counsel, that the power first given took precedence, and that the subsequent power, so far as it conflicted with the first, was void.

Lastly, if the principle in question is to be regarded as a positive rule of law, applicable to the construction of this instrument, and we are to he required by its operation to override the clear and positive requisitions of the subsequent clauses by reason of their repugnancy to the prior one, then the technical rules and language of the law should be applied to the construction of that prior clause.

Under that technical language there is (as before observed) no such thing as a “ deed of conveyance.” A deed is a conveyance itself. There are various kinds of deeds, and among them a deed of partition (Willard on Real Estate, p. 419).

The words “conveyance or” may then be rejected as surplusage and meaningless in the connection in which they are used.

Upon this construction no repugnancy is found.

There is then no rule of law which will be violated by carrying out the above adjudged intent of the instrument.

That intent must therefore prevail, and as a consequence thereof the defendants cannot defend their possession under a title derived from the trustee on which they rely.

Judgment affirmed with costs.

Monell, J., took no part in the decision.