author: Lawrence, .L;

text:
    JOHN I. GOODRICH, Respondent, v. JOHN GILLIES, Appellant, Impleaded with the MAYOR AND OTHERS OF THE CITY OF NEW YORK and Another, Dependants.

      Mechanics lien — it cannot he enforced where the lienor knew it to he false when filed — seas. 1824 to 1838 of ahajo. 410 0/1882.
    John 1. Goodrich, who was a sub-contractor under John Gillies, a contractor engaged in building a pier and bulk-head, for the city of New York, furnished to the work certain piles, and thereafter filed a lien for the whole number of piles furnished, although when he filed it he well knew that he was filing a lien for an amount far in excess of the value of the material which actually went into the work, as certain of the piles had been, to his knowledge, rejected by the inspector of the work, and the court found as a fact that not much more than one-third of the piles furnished, and for the value of which the lien was filed, by Goodrich were, in fact, used.
    On appeal from a judgment in his favor.for a portion of the amount claimed by him:

      Held, that as the notice of lien was false, and was known by Goodrich to be false when he filed it, he could not recover anything.
    That it is a general principle that statutory liens must be truthful in their statements; and that when they are not so the courts will not enforce them.
    That the only variance in a lien permissible under the consolidation act (§§ 1824-1838 of chap. 410 of 1882) was specified in section 1825, which provides that a variance in the name of the contractor should not invalidate it.
    That mere error in a lien, made without a fraudulent intent, might present a different question.
    Appeal by the defendant John Gillies from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 21st day of July, 1892, in favor of the plaintiff and against the defendant John Gillies, upon a recovery of $285.60, and interest and costs, after a trial before the court at the New York Special Term.
    The judgment decreed this sum to be a lien upon the moneys, payable to John Gillies under a contract made by him with the city of New York, and directed its payment from the moneys due John Gillies and withheld by the city.
    The plaintiff John I. Goodrich, who was a sub-contractor furnishing materials to the defendant John Gillies, a contractor, with his co-defendant, the City of New York, for the construction of a certain pier and bulk-head, filed a notice of lien, to foreclose which this action was brought.

      Thomas F. Magner, for the appellant.

      George 8. Hastmgs, for the respondent.
   Lawrence, .L;

This cause was before the General Term on an appeal from a judgment rendered at Special Term m December, 1891. That judgment was reversed, as appears from the opinion then delivered, on the ground that it did not appear that the merchandise, which was the subject of the lien, or any part of it, had been used towards the performance or completion of a contract made with the mayor, aldermen and commonalty of the city of New York, and that, therefore, a case was not made out entitling the plaintiff to a lien under the provisions of section 1824 of the consolidation act. (62 Hun, 479.)

The court, on the trial, which resulted in the judgment from which the present appeal is taken, found, as matter of fact, that, of the material contracted to be sold and delivered by the plaintiff to the defendant, fifty-one pine sticks, of the value of five dollars and sixty cents each, were actually used by the defendant in the execution and completion of the contract between the defendant and the city of New York; and, also, that the whole amount of the sticks delivered by the plaintiff to the defendant amounted to 141. There were fourteen other sticks for which the plaintiff also claimed a lien, and the amount for which such lien was claimed was stated in the notice to be, after deducting all just credits and offsets, the sum of $650.14, with interest. It was found by the court that the value of the 141 pine sticks delivered by the plaintiff, after deducting a payment on account thereof of $161.86, was and is the sum of $571.74. It was also found, as matter of law, that the plaintiff was only entitled to a lien for $285.60, being the value of the fifty-one sticks aforesaid, with interest.

Although the court found that but fifty-one sticks, out of the 155 claimed by the plaintiff to have been delivered to the defendant, were used in the execution and performance of the contract with the city, it is found that the plaintiff filed a notice of lien with the city officers, claiming that there was due and owing to him at the time of such filing, after deducting all just credits and offsets, the full sum of $650.41. In other words, plaintiff filed a claim for much more than double the sum due to him for materials furnished by him, which were used in the performance of the contract. The evidence of the plaintiff himself, taken upon the trial, conclusively shows that he must have known, at the time he filed the notice of lien, that the amount claimed by him was not the true amount due and owing to him, for which he was entitled to a lien. ITe claims in_his notice that all the materials were actually used in the execution of the contract with the city. In his testimony he admits that the fourteen sticks aforesaid were rejected, and that they were not used in the performance of the contract, and he admits that, knowing this fact, he, notwithstanding, filed a notice of lien in which the value of those sticks was included as a part of his claim against the defendant. It also appears from his testimony that the third installment of thirty-five piles, which he delivered, on the 28th of June, 1889, were not used in the construction of the pier. He states that he agreed to take four dollars apiece for that installment of piles, or one dollar and sixty cents less than the orignal agreed price. He was asked: “Why did you agree to throw-off that $1.60 on those piles ? ” and his answer was: “ Because it was better to do that than have the expense of moving them anywhere else; * * * I agreed to take them away, because he said ho could not use them; I had to take them away; * * * I agreed to throw off $1.60 on every one of them, and then he took the whole lot rather than take the other third of them away; the other third was not so poor that I had to deduct something; I knew that I would have to take away one-third, because the inspector rejected them, and they could not go in the work.”

It also appears that he knew that a subsequent lot, sent on the tenth of July, did not go into the construction of the pier, because, in his letter of July first, referring to short sticks in the last lot of thirty-five, which were rejected by the defendant, he states that he has another lot of the same kind which we will send and expect the defendant to take. It is very clear, from other portions of the testimony of the plaintiff, that he also knew, at the time he filed his notice of lien, that other sticks of the timber which formed the subject of this lien did not go into the construction of the pier, and yet he filed a notice of lien which covers every stick of timber, whether accepted or rejected by the defendant.

A party should not be allowed to proceed in this manner, and unless there is something in the lien law, contained in the consolidation act, which precludes us from so doing, we should, under such circumstances, prevent the plaintiff from enforcing a lien for any sum whatever. Liens of this character rest and must find support entirely upon the statutes authorizing them. (Benton v. Wickwire, 54 N. Y., 226.) And it has always been held that the notices of lien filed under such statutes must comply with the terms of the statute and must be truthful in their statements, and, under the general mechanics’ lien law, it has been held that a notice of lien, which did not correctly state the name of the debtor, could not effect a valid lien nor sustain proceedings for its enforcement. (Kneeland on Mechanics’ Liens [2d ed.], § 163.)

It was also held by the General Term of this department, in Foster v. Schneider (50 Hun, 151), that, under chapter 342 of the Laws of 1855, relating to mechanics’ liens, which requires the notices filed with the clerk to contain a statement whether all the work for which the claim is made has been actually performed or furnished, and if not, how much of it, a notice which fails to state how much of the work under the contract remains to be performed, but states that it has all been performed, when, in fact, it has been only partly performed, does not entitle the claimant to a lien. In that case, Judge Daniels, in delivering the opinion of the court, said : “ It cannot be said that a misrepresentation of this description would not invalidate the proceeding, for the legislature, as a part of the proceeding by which the lien is to be secured, has provided otherwise. It was intended in this manner to exact a truthful statement of the facts to be contained in the. notice, and that probably was intended should be for the benefit of other claimants as well as of the owner of the property and the truthful information of the court. And the courts can no more dispense with the observance of this requirement in the making and filing of the notice than they can with that of any other direction required to be observed for the purpose of creating a lien upon the property.” (See, also, cases cited by Daniels, J., in Gaskell v. Beard, 58 Hun, 10Y.)

Sections 1824 to 1838 of the consolidation act provide for the filing of liens by persons who may perform any labor or furnish any material toward, tlie performance or completion of any contract made with the city. And section 1825 of that act prescribes that at any time before the whole work, to be performed by the contractor for the city, is completed or accepted by the city, and within thirty days after the same is so completed or accepted, any claimant may file with the head, of the department or bureau having charge of said work, and with the comptroller, notices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due, and, if not due, when it will be due, giving the amount of the demand, after deducting all just credits and offsets, with the name of the person by whom employed or to whom materials were furnished; also a statement of the terms, time given, conditions of his contract; and also that the work was done or materials were furnished to the said contractor, and were actually performed or used in the execution and completion of said contract with said city; but nx> variance as to the name of the contractor shall affect the validity of the said claim or lien.” It will thus be perceived that the statute provides that a variance in the name of the contractor shall not affect the validity of a claim or lien. This was probably inserted in the act because, as has already been stated, under former decisions under the mechanics’ lien law it had been held that such a variance would be fatal to the notice of lien. Section 1825 of the consolidation act does not make any other exception.

The case of Gaskell v. Beard (58 Hun, 101) holds that, under the consolidation act (Laws of 1882, chap. 410, § 1825), if, in a notice of lien filed thereunder, a person, without any fraudulent intent, or through mistakes on the part of those having in charge the details of the business, claims a larger amount in the notice of lien than is shown by the evidence to be due to him, the lien in such case may be enforced, notwithstanding the error in the amount claimed in the notice. We do not regard that case as being applicable to the case at bar, for the reason that the plaintiff admits that at the time he filed his notice of lien he knew that a large proportion of the materials furnished by him had not been used in the performance of the contract with the city; that a portion of such materials had been rejected by the contractor, and that he had sold other portions thereof for other purposes than for the performance of the contract with the city. Under sucli circumstances, we think that the plaintiff willfully and fraudulently misrepresented, in his notice of lien, the amount which was due to him, and that, therefore, he should not be allowed to obtain a lien for the fifty-five sticks which were the only portion- of the materials furnished by him that was used in the execution of the contract. In other words, we think it is our duty so to construe this statute as to prevent parties from obtaining a lien by following in their notice the language of the statute, when they know that the proof which they must give, when an action is brought for the enforcement of the lien, must fail to establish that they are entitled to more than a small portion of the sum for which the lien is claimed. To permit such a practice would be to enable a sub-contractor to fraudulently, and by means of his own wrong, prevent the contractor with the city from obtaining his money, and aid him in forcing a settlement of a demand to which the contractor may have, as he claims in this case to have, an ample and substantial defense.

We think that the plaintiff has failed to show, by his evidence, that, under the notice of hen as actually filed by him, he was entitled to a lien upon the moneys in the hands of the comptroller, and that he should be remitted to his ordinary action at law to establish such claim as he may have against the defendant.

The judgment below must be reversed, and a new trial ordered, with costs and disbursements to the appellant to abide event.

Yan BRUNT, P. J., and O’Bbien, J., concurred.

Judgment reversed and new trial ordered, with costs and disbursements to the appellant to abide event.


source: Caselaw Access Project

author: YaN Bp.uNt, P. J.: BabRett, J.: O’BexeN, J.

license: Public Domain

text:
    FRANKLIN D. LOCKE and Others, as Executoes of JONATHAN SCOVILLE, Deceased, Respondents, v. MAGDALENA RINGS, Individually and as Guardian of HENRY C. RINGS, and Another, Appellants, Impleaded with Others, Dependants.

      Declaration of trust — effect of a reference thereto in a will — violation of the statute against perpetuities.

    In 1887 Jonathan. Scoville executed an alleged declaration of trust relative to four certificates of stock, and therein stated that he set apart these certificates for the following purposes, to wit: That the net income or dividends should, from time to time, he apportioned into ten equal parts, of which three should he paid over for the use and benefit of Magdalena Rings, three for the use and benefit of Anua M. Rings, two to be paid to Henry C. Rings during life and two to be paid to Minnie M. Rings for life; that in case of the decease or marriage of Magdalena Rings, or of the decease of Anna M. Rings, whichever event should first happen, the portion allotted to such person should be paid over to the use and benefit of St. John’s Episcopal Church, and the portion allotted to the other should, after her decease (or marriage, if it he the said Magdalena), he paid over to the use and benefit of the Buffalo Orphan Asylum; that, upon the decease of the said Henry O. Rings, his portion should thenceforth he paid to the use and benefit of the St. Vincent’s Female Asylum, and that, upon the death of Minnie M. Rings, her portion should thereafter be paid to the use and benefit of the Buffalo Hospital of the Sisters of Charity.
    •One of the original declarations of trust was deposited, with the certificates of stock, with a safe deposit company, and another, original, was delivered to the beneficiaries.
    Scoville died in 1891, and in the sixth article of his will he referred to the trust which he had attempted to create, directed his executors to carry out its terms, if possible; made a provision for the beneficiaries in case it could not be carried out, and in that event directed that the securities he deemed a portion of his residuary estate.
    In an action brought for the construction of the declaration of trust, and for a direction as to the effect of the will upon it, the court held that the declaration was invalid as to all the beneficiaries and they appealed.

      Held, that no trust whatever was created by the sixth article of the will, because the deed of trust was not incorporated in it, and no disposition of the property was made other than by reference.
    That an unattested paper of a testamentary character could not be taken to be a part of a will, although referred to in the will.
    That the separation of the shares by Scoville and his execution of the declaration were sufficient to subject the shares to the trusts, provided that the latter were valid under the statute.

      That the trusts were void for the reason that they violated the statute against perpetuities.
    That nothing was disposed of by the declaration except income; and that there was no disposition of the principal at any time, the income after the death of the first beneficiaries being directed to be paid to corporations which are supposed never to die.
    That it was the testator’s intention that the principal should always be kept in solido, and should never be released from the trust.
    It was admitted that the gifts of income to the corporations were void.

      Held, that the fact that upon the death of a beneficiary there would be a severance of a proportional part of the principal, made necessary because that part could no longer be employed for trust purposes, did nut imply upon the part of Scoville an original intention to create for each beneficiary a separate trust in the principal proportioned to his interest. (Per Barrett, J.)
    O’Brien, J., dissenting, holding that the trusts in favor of the Rings were valid and severable, and those in favor of the corporation were void.
    Appeal by the defendants, Magdalena Rings, individually and as. guardian of Henry O. Rings and Minnie M. Rings, Anna M. Rings, Henry C. Rings, Minnie M. Rings, tbe Buffalo Orphan Asylum, the St. Yincent’s Female Orphan Asylum and the Buffalo Hospital of the Sisters of Charity, from the whole of a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 26th day of July, 1892, declaring a declaration of trust executed by Jonathan Scoville, deceased, void; that the will of Scoville did not create a valid trust in favor of the beneficiaries mentioned in the declaration, and that the ¡property mentioned in the declaration must be deemed a part of Jonathan Scovill’s residuary estate, excepting, however, that part of said judgment allowing costs to the attorneys out of the fund.
    The case was tried by the court at the New York Special Term.

      J. G. Milbiirn, for the appellants.

      S. Evarts, for the respondents.
   YaN Bp.uNt, P. J.:

This action was brought by the executors of the will of Jonathan bcoville, to obtain the determination of the court as to the validity of a certain trust attempted to be created by the testator, by an instrument in the form of a declaration of trust, and as to the effect and validity of the will of the testator in relation to such attempted trust, and the property affected thereby.

In January, 1887, the testator executed, in triplicate, a paper in the following words:

“Be it remembered that I, Jonathan Scoville, of the city of Buffalo, county of Erie and State of New "York, owner of fcur hundred shares of the capital stock of the New York and Harlem Railroad Company, of fifty dollars each, and evidenced by four certain certificates thereof, numbered 21,815, 21,816, 21,817 and 21,818, respectively, have and do hereby dedicate and set apart, from and after the date hereof, in whose possession soever the said several certificates of stock may come without actual transfer, all and singular the net income and dividends hereafter to accrue and become due and receivable from time to time thereon, in trust to myself, or to any custodian in whose hands the said certificates of stock may be deposited by me, or by my order for the like purpose, and to and for the following uses and purposes, that is to say:

“The said net income or dividends of the said stock, as often as received, from time to time, shall be apportioned into ten equal parts, three of which parts shall be paid over to the use and benefit of Magdalena Rings, of Buffalo, N. Y.; three parts thereof shall be paid over to the use and benefit of Anna M. Rings, of the same place; two parts thereof shall be paid over to Henry C. Rings, of the same place, for and during his natural life, and two parts thereof shall be paid over to Minnie M. Rings, of the same place, for and during her natural life, provided, however, that in case of the decease or marriage of the said Magdalena Rings, or the decease of the said Anna M. Rings, whichever event shall first happen, then the portion so allotted to such person shall, from and after the happening of such event, be paid over to the use and benefit of the St. John’s Episcopal Church and Society of the town of Salisbury, State of Connecticut, and the portion allotted to the other shall, after her decease (or marriage, if it be the said Magdalena), be paid over to the use and benefit of the Buffalo Orphan Asylum (Protestant) of the city of Buffalo, and upon the decease of the said Henry C-Rings, the portion so allotted to him shall thenceforth be paid to the use and benefit of the St. Yincent’s Female Asylum of the city of Buffalo, and upon the decease of the said Minnie M. Rings, the portion so allotted to her shall be thereafter paid to the use and benefit of the Buffalo.Hospital of the Sisters of Charity; and it is hereby expressly provided, from and out of the said income so apportioned to the said Magdalena and Anna M. Rings, they shall each bear and pay an equal portion of the taxes, repairs and insurance of the premises this day leased to the beneficiaries herein named.
“ For the purposes of this instrument, the said Magdalena Rings shall be considered the guardian of the property and rights of the said Henry C. Rings and Minnie M. Rings during minority, and upon her marriage or decease then the said Anna M. Rings, if surviving and unmarried, shall be deemed such guardian; otherwise, a guardian for the said minors shall be duly appointed.
“ The right to cancel or otherwise modify this instrument at any .and all times is hereby expressly reserved to me, notwithstanding any provision herein contained
“ Witness my hand, this fifth day of January, A. D. 1887.
“ JONATHAN SGOYILLE.”

One of the originals, and the certificates of stock mentioned in it* .and which are the subject-matter of the trust, were then deposited in a sealed envelope in the box of Scoville in the Mercantile Safe Deposit Company, of the city of New York. Another of the originals was delivered to the beneficiaries named in the trust; and the remaining one was delivered to and deposited with one M. A. Whitney, a lawyer in the city of Buffalo. Scoville died on the 4th ■of March, 1891, leaving a last will and testament dated the 27th of December, 1890, and a codicil thereto bearing date the 21st of February, 1891, which were duly admitted to probate and letters testamentary issued thereon. At the time of the death of said Scoville the deed of trust and certificates still remained in the ■envelope with the seal unbroken, and deposited with the Mercantile Safe Deposit Company.

The sixth article of Scoville’s will refers to this deed of trust and is as follows:

Article Sixth. I have executed and deposited in the Mercantile Safe Deposit Company of the city of New York a certain deed of trust, which affects a portion of my estate, which portion is more particularly described in a paper inclosed with such deed of trust. I direct my executors to cany out the provisions of this deed of trust so far as they can, but in case any unforseen circumstances should prevent its performance and execution in full, then I direct that the sum of two thonsand dollars per annum be paid by my executors to the beneficiaries named in such deed of trust, in the proportions mentioned in such deed of trust and I direct that my executors set apart a sum sufficient to produce the net annual income of two thousand dollars, and to invest and reinvest the same, and out of the income fulfill my directions in that regard. Should any unforseen circumstances prevent the carrying out of the terms of said deed of trust, then the securities mentioned and connected therewith are to be deemed a portion of my residuary estate (but under no circumstances, in case it is deemed invalid, shall it affect this article).”

By the codicil the Farmers, Loan and Trust Company and one Locke were appointed trustees of the trusts expressed in or created by the said article 6 and other articles of the will.

The court at Special Term held the deed of trust invalid as to all the beneficiaries, and from the judgment thereupon entered this appeal is taken.

It is clear that there was no trust, valid or otherwise, created by the sixth article of the will, because the deed of trust is not incorporated in the will, and the sixth article by itself makes no disposition whatever of the property mentioned or referred to therein, and it can receive no validity by its reference to the deed of trust, because such deed was not incorporated in such will; it being the law of this State that an unattested paper, which is of a testamentary nature, cannot be taken as a part of the will, even though it be referred to by that instrument. In order that such a paper may have the force of a testamentary disposition of property it must be authenticated according to the provisions of our statute of wills, and the deed of trust not being so authenticated cannot be sustained as part and parcel of the will.

But we think that the separation by Mr. Scoville of these shares of stock from the bulk of his estate, and the execution by him of the declaration of trust (and, by execution, we include all that is a necessary element to a complete execution of an instrument), were sufficient to subject the shares of stock to the trusts set forth in such declaration, provided that a trust, such as was attempted to be created, was permitted by our statutes.

As was said in the case of Barry v. Lambert (98 N. Y., 306): “ It is well settled that a trust in personal property may be created by parol, and that no particular form of words is necessary for its. creation, but the words or acts relied on to effect that object should be unequivocal, and plainly imply that the party making them intended to divest himself of his interest in the property, and to. hold it thereafter for the use and benefit of another. This is all that is required to create a trust even as against the owner, and although, he continues to retain possession of the property devoted to the trust.”'

This brings us to the question whether the trust attempted to be' created was one in contravention of the statute forbidding perpetuities.

A very brief examination of the deed of trust will show what the intention of the creator of the trust was. He refers to 400 shares, of the capital stock of the New York and Harlem Railway Company, represented by four certificates, of which he is the owner; and he, by said deed of trust, dedicates and sets apart, from and after the. date thereof, in whose possession soever the said several certificates-of stock might come without actual transfer, all and singular the, net income and dividends thereafter to accrue and become due and receivable from time to time thereon. This net income or dividends-he directs to be apportioned into ten equal parts, three of which: shall be paid to the use and benefit of Magdalena Rings, of Buffalo,, N. Y., three parts thereof to the use and benefit of Anna M. Rings,, of the same place, two parts thereof to Henry C. Rings, of the same, place, for and during his natural life, and two parts to Minnie M. Rings, of the same place, for and during her natural life, with a. proviso that in case of the decease or marriage of said Magdalena, Rings, or the decease of said Anna M. Rings, whichever event, should first happen, the portion allotted to such person should, from and after the happening of such event, be paid over to the use and benefit of a certain Episcopal church in the town of Salisbury, Conn.,, and that the portion allotted to the other should, after her decease (or marriage if it were the said Magdalena Rings), he paid over to-the use and benefit of an orphan asylum in the city of Buffalo; and that upon the decease of said Henry C. Rings, the portion so allotted to him should thenceforth be paid to the use and benefit of the St. Yincent’s Female Asylum of the city of Buffalo; and upon the decease of said Minnie M. Rings, tlie portion allotted to her should be paid over to the use and benefit of the Buffalo Hospital of the Sisters of Charity.

It will thus be seen that there is no disposition of the principal forming the corpus of this trust fund, and it is perfectly clear that there was no intention upon tlie part of the creator of the trust to make any disposition of such principal, because, as soon as the first beneficiaries died, the direction is that the income should be paid to a corporation, which is supposed never to die, and it is income which is treated of all the time. It is plain that it was his intention that the trust fund should be kept m solido during all this time, because otherwise there could be no division of the income into ten parts as is directed. It is thus manifest that the absolute disposition of the whole corpus of this fund is suspended for more than two lives in being, and such was the intention of the creator of the trust.

It is, undoubtedly, true that income and principal given in equal shares, out of one fund kept m sólido for mere convenience of investment, may be severed and independent trusts created for tlie several beneficiaries, and thus the shares and interests will be several, even though the fund remain undivided. (Schermerhorn v. Cotting, 131 N. Y., 60.) But upon an examination of the facts’of that case it will be seen that the suspension of the power of alienation of the share of each of the beneficiaries was made to depend upon two lives in being only, and it was the plain intention of the testator that principal should descend absolutely upon the termination of such two lives in being. In the case at bar we look in vain for the expression of any such intention. Upon the contrary, there is no provision whatever for the vesting of the principal at any time; and the very fact that the creator of the trust provided that the second beneficiary of each one of these shares should be a corporation, and the gift is only of a certain share of income and not of principal, shows that all that he intended to give the corporation was theincome and not the principal. It also shows the intention that none of the principal was to be released from the trust, and that only income, under any circumstances, was to be paid over. It seems to us that it is so plain that this was the intention of Scoville that, if the courts are to construe an instrument of this character as exhibiting an intention to create separate and distinct trusts rather than to put one undivided fund in trust, then it will be impossible for the creator of a trust, however much he may desire to do so, to express any intention to have a fund remain in solido.

The rule undoubtedly is, with respect to instruments of this character, that, where it can be done without violence to the intention of the creator of a trust, that construction will be given to the clause which will sustain the intended trust rather than one that will defeat it. But where the general meaning of the language of the instrument shows that there was an intention to provide for an illegal extension of the trust term, and that any other construction will do violence to the plain language of the instrument, then the court can only found its judgment upon the manifest intention of the creator of the trust.

In the case at bar, as we have already seen, it was beyond question the intention of Mr. Scoville that the corpus of this fund should remain for an unlimited period yielding income, which he gave to the numerous beneficiaries mentioned in the trust deed. And this was a clear violation of the statute against perpetuities..

The judgment should be affirmed, with costs.

BabRett, J.:

The appellants say that there must necessarily be an actual severance of a proportionate part of the principal upon the death of each of the first beneficiaries, because the gift of income to the second beneficiaries cannot take effect, such secondary gifts of income to the corporations being void.

Upon this, they contend that an original severance in law to be implied, because so much of the principal, as may be thus released from the production of income, must go somewhere. This amounts to saying that, even if Mr. Scoville intended no severance, and although he certainly made no provision with regard to the principal, yet the law will insist upon and declare a severance for the purpose of sustaining the trust. This is carrying the doctrine of severance to an impossible extreme. There was here, in reality, no “severance” of principal, and that expression is misapplied. What the appellants mean is that, upon the death of each original beneficiary, a proportionate part of the principal will be incidentally released. But that release would not result from an original severanee, but simply from the further non-employment of principal for the trust purpose.

I do not mean to say that the appellants concede that Mr. Scoville intended no severance. They do insist that his intention was to create separate trusts of properly proportioned principal. Where I essentially differ with them, however, is in finding such intention from the release of principal, which may result from the void gift of income to the corporations. No such intention can be inferred from a condition resulting solely from the testator’s illegal purpose. On the contrary, the secondary gift of income to corporations plainly indicates an intention to keep the principal permanently employed, and to keep it, while so employed, in solido.

I agree with the presiding justice that the judgment of the Special Term was correct and should be, in all respects, affirmed, with costs.

O’BexeN, J.

(dissenting):

This action is brought by the executors of the will of Jonathan Scoville, deceased, to obtain a determination of the court as to the validity of a certain trust created by the testator by an instrument in the form of a declaration of trust, and as to the effect and validity of the will of the testator, in relation to such trust, and the property affected thereby.

In January, 1887, the testator executed a paper in the following words;

“Be it remembered, that I, Jonathan Scoville, of the city of Buffalo, county of Erie and State of New York, owner of four hundred shares of the capital stock of the New York and Harlem Railroad Company, of fifty dollars each, and evidenced by four certain certificates thereof, numbered 21,815, 21,816, 21,817 and 21,818, respectively, have and do hereby dedicate and set apart, from and after the date hereof, in whose possession soever the said several certificates of stock may come without actual transfer, all and singular the net income and dividends hereafter to accrue and become due and receivable from time to time thereon, in trust to myself, or to any custodian, in whose hands the said certificates of stock may be deposited by me or by my order for the like purpose, and to and for the following uses and purposes, that is to say :

“ The said net income or dividends of the said stock, as often as received, from time to time, shall be apportioned into ten equal parts, three of which parts shall be paid over to the use and benefit of Magdalena Rings, of Buffalo, N. T.; three parts thereof shall be paid over to the use and benefit of Anna M. Rings, of the same place; two parts thereof shall be paid over to Henry C. Rings, of the same place, for and during his natural life; and two parts thereof shall be paid over to Minnie M. Rings, of the same place, for and during her natural life, provided, however, that in case of the decease or marriage of the said Magdalena Rings, or the decease -of the said Anna M. Rings, whichever event shall first happen, then the portion so allotted to such person shall, from and after the happening of such event, be paid over to the use and benefit of the St. John’s Episcopal Church and Society of the Town of Salisbury, State of Connecticut, and the portion alloted to the other shall, after her decease (or marriage, if it be the said Magdalena) be paid over to the use and benefit of the Buffalo Orphan Asylum (Protestant) of the City of Buffalo, and upon the decease of the said Henry C. Rings, the portion so allotted to him shall thenceforth be paid to the use and benefit of the St. Yincent’s Female Asylum of the City of Buffalo, and upon the decease of the said Minnie M. Rings, the portion so allotted to her shall be thereafter paid to the use and benefit of the Buffalo Hospital of the Sisters of Charity ; and it is hereby expressly provided, from and out of the said income so apportioned to the said Magdalena and Anna M. Rings, they shall each bear and pay an equal portion of the taxes, repairs and insurance of the premises this day leased to the beneficiaries herein named.
“ For the purposes of this instrument, the said Magdalena Rings shall be considered the guardian of the property and rights of the said Henry C. Rings and Minnie M. Rings, during minority, and upon her marriage or decease, then the said Anna M. Rings, if surviving and unmarried, shall be deemed such guardian; otherwise, a guardian for the said minors shall be duly appointed.
“ The right to cancel or otherwise modify thiS instrument at any and all times is hereby expressly reserved to me, notwithstanding any provision herein contained.
“Witness my hand, this fifth day of January, A. D., 1887.
“JONATHAN SCOYILLE'.”

This, with the certificates of stock therein mentioned, was deposited in the Mercantile Safe Deposit Company of New York, and duplicates of the trust deed were deposited with the beneficiaries therein named, and with one M. A. Whitney, of Buffalo.

By the sixth article of the testator’s will he provided as follows “Article Sixth.— I have executed and deposited in the Mercantile Safe Deposit Company of the City of New York a certain deed of trust, which affects a portion of my estate, which portion is more particularly described in a paper inclosed with such deed of trust. I direct my executors to cany out the provisions of this deed of trust so far as they can, but in case any unforseen circumstances should prevent its performance and execution in full, then I direct that the sum of two thousand dollars per annum be paid by my executors to the beneficiaries named in such deed of trust, in the proportions mentioned in such deed of trust, and I direct that my executors set apart a sum sufficient to produce the net annual income of two thousand dollars, and to invest and reinvest the same, and out of the income fulfill my directions in that regard. Should any unforeseen circumstances prevent the carrying out of the terms of said deed of trust, then the securities mentioned and connected therewith are to be deemed a portion of my residuary estate (but under no circumstances in case it is deemed invalid, shall it affect this article).”

By a codicil to the will the plaintiffs above-named were made executors, and it was also provided as follows:

“ I make, constitute and appoint the Farmers’ Loan and Trust Company of the City of New York and Franklin D. Locke, of the city of Buffalo, trustees of each and all the trusts expressed in or created by article second, article third, article sixth and article eleventh of my said will, as fully as if the said trust company and the said Franklin D. Locke were named as my donees or legatees in trust in said articles, and I direct my executors to do such acts as shall be necessary to effectuate this intent.”

By the eleventh article of the will the above-named infant defendants Scoville are made residuary legatees in trust. In so far as the provisions of the deed of trust and the will are ineffectual to create a valid trust, the above-named infant defendants are entitled to share in the property covered thereby as residuary legatees.

The court decided adversely to the trust created by the trust deed and the will, and the beneficiaries mentioned therein have appealed to this court. The question presented is: 1. Whether the will, by the sixth article, either with or without the aid of the deed of trust, creates a valid trust under the laws of this State. ■ 2. Whether the deed of trust by itself creates a valid trust.

AYe think that article sixth of the will, standing alone, creates no valid trust, because it makes no disposition of the property mentioned or referred to therein, and is, therefore, valueless as a disposition of property. Nor do we think it receives any support, olean be upheld, by its reference to the deed of trust, because the latter cannot be regarded as incorporated in or as a part of the will itself. This latter conclusion follows from the rule laid down in Booth et al. v. The Baptist Church et al. (126 N. Y., 215), wherein the court says: “ It is unquestionably the law of this State that an unattested paper, which is’ of a testamentry nature, cannot be taken as part of the will, even though referred to by that instrument.”

Disregarding, then, altogether the will, the question still remaining for our determination is as to whether the deed of trust by itself creates a valid trust.

It is insisted that when taken by itself it' offends against the statute of perpetuities, and that at most it is but an expression of a voluntary promise or intention to do something in the future, and, therefore, does not create a valid trust. The former, viz., that the deed of trust was void, because it unlawfully suspended the power of alienation for more than two lives in being, was the view adopted by the learned trial judge. This conclusion and the question relating to the insufficiency of the deed as a declaration of trust may be considered together.

In Barry v. Lambert (98 N. Y., 306) it is said: It is well settled that a trust in personal property may be created by parol, and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal and plainly imply that the party making them intended to divest himself of his interest in the property, and to hold it thereafter for the use and benefit of another. This is all that is required to create a trust even as against the owner, and although he continues to retain possession of the property devoted to the trust.”

Following in the wake of Martin v. Funk (75 N. Y., 134) are Willis v. Smyth (91 id., 297); Mabie v. Bailey (95 id., 206); Barry v. Lambert (98 id., 300); Van Cott v. Prentice (104 id., 45); McPherson v. Rollins (107 id., 316).

Applying the above rule to the deed of trust, we think that the instrument caqnot be regarded as a mere expression of a voluntary promise or intention to do something in the future, but is an explicit declaration of a trust which, under the authority, is all that is necessary to create the same. The power to revoke contained therein did not destroy it whilst it was unexercised, and Mr. Scoville died without exercising it. It is true that this declaration of trust does not deal with the principal, but with the income. But we do not regard this as material, because no valid distinction can be made in respect to the creation of a trust between the principal of a fund and the income of a fund, and we agree with the appellant in his view that “ a person is clearly at liberty to create a trust with respect to the property itself, or the income derived from it, or both, and a declaration of trust which is efficacious to create a trust, as to the property itself, is equally efficacious, if aj)t words are used, to create a trust as to the income.” (McArthur v. Gordon, 126 N. Y., 597; Fagan v. Gurney, 14 Week. Dig., 468; Rosenburg v. Rosenburg, 40 Hun, 91; Stone v. Hackett, 12 Gray, 227).

We think, therefore, that the instrument under consideration was a sufficient declaration to establish a trust, and a valid one, unless it contravenes some statute.

This brings us to the consideration whether ■ it did violate the statute against perpetuities. To decide this question it is important, at the outset, to determine what Mr. Scoville intended to accomplish. There were 400 shares of stock, which were given to trustees with directions to receive the income, and divide the same into ten parts. Certain of these parts so divided, he gave to certain persons during their respective lives, and to one until her marriage; and after the death (and in the one case, marriage), of each of these beneficiaries, the portion so allotted to him or her was to go to a specific institution for an unlimited period of time. It should be noticed, however, that, on the marriage of one and the death of the other beneficiaries, the portion allotted to each beneficiary goes to a new beneficiary, and not to the survivors among the first beneficiaries named.

As said in Vanderpoel v. Loew (112 N. Y., 167): “ Tbe pivotal question in this case is the inquiry whether the testator meant to create one trust, enveloping the interests of all the beneficiaries, and holding them in its grasp until a final or ultimate division, or whether he intended to constitute five separate trusts, each to be measured by its own terms and having its own several purposes to accomplish.”

Applying this test, we do not think there is here presented the case of the creation of a trust with reference to a single fund, the income of which is to be divided amongst four persons, or the survivor of them, as long as any of them is alive; but, as stated, upon the termination of the interest of each primary beneficiary, his portion goes to a new beneficiary whose interest then, for the first time, begins. It is true that there is no final and absolute gift to any person of the corpus of the fund covered by the trust; but, we think, that one of two views must be held, either one of which is inconsistent with the conclusion reached by the learned trial judge, that there was a suspension of the power of alienation with respect to the corpus or principal of the fund, for more than two lives in being. Either the gift over is valid, and the institution designated is a new beneficiary, or, if invalid, then the parties who take the residuary estate under Mr. Scoville’s will succeed. In other words, upon the death (and in one case, marriage), of any of the first beneficiaries, the portion of the fund out of which the income was derived must go to the new beneficiary, the institution designated, or to the residuary legatees, and thus that portion be severed from the general fund.

As was said in Savage v. Burnham (1Y N. Y., 561, at p. 571):

“ There is, indeed, but one fund which is embraced in a single trust, but the interests carved out of it are entirely distinct. The trust itself is necessarily divisible as often as the beneficial dispositions of the will call for a division and separation of any portion of the estate from the residue.”

And in Schermerhorn v. Cotting (131 N. Y., 61), the court say:

“ Income and principal given in equal shares out of one fund kept im, solido for mere convenience of investment, may be severed and independent trusts created for the several beneficiaries, and thus the shares and interests will be .several, even though the fund remain undivided.”

It will thus be seen that the circumstance of the -fund being kept in sólido is not controlling, and where an instrument creating a trust is susceptible of two constructions, the decisions show that the court always inclines to that one which will sustain, rather than destroy, the trust, and to that end will construe the instrument as being several in preference to regarding it as a single and indivisible trust. We think, therefore, that the appellant is right in the contention that, upon the death of each life beneficiary, the specific portion of the fund yielding the sjiecific share of the income to which he or she was entitled is absolutely set free from any trust and is at once subject to separation and distribution; that there is nothing in the declaration of trust requiring or permitting the fund to be kept entire during the four lives. In our view, therefore, the trusts created in favor of the Eings are not void as offending against the statute of perpetuities.

The remaining question relates to the validity of the trust in favor of the institutions or secondary beneficiaries.

As well stated by the appellant, one of two views may be taken.

One is, that the title to the shares of stock is vested in a trustee, other than the institution, to receive the income and, on the death of each life beneficiary, to pay the share of the income which was payable to him or her to the institution named during an unlimited period. If that be the true view the trusts in favor of the institutions are invalid, as it is settled that a transfer of property to a party in trust to pay the income forever to a charitable institution, the institution not being the trustee, is invalid as an unlawful suspension of the power of alienation. (Adams v. Perry, 43 N. Y., 487; Cottman v. Grace, 112 N. Y., 299.) The other view is that the gift over to each institution is a gift of a specific portion of the income direct to the institution, without the intervention of a trustee, in which case, the gift being unlimited as to time, it would operate as a gift of the principal! (Earl v. Grim,, 1 Johns. Ch., 494; Hatch v. Bassett, 52 N. Y., 359; Wells v. Wells, 88 id., 331; Garret v. Rex, 6 Watts [Penn.], 14; Van Rensselaer v. Dunkin's Exrs., 24 Penn. St. 252; Greene v. Wilbur 15 R. I. 251.)

We think, upon the construction to be given to the deed of trust, the first view should prevail, for the reason, as stated by the learned judge at Special Term, that “ the principle that a general gift of the income of a fund making no mention of the principal is a gift of the fund itself, is not applicable. (Hatch v. Bassett, 52 N. Y., 359.) There is a mention of the principal, which, is given to the trustees named, and I also think the income subject to the duties as to it of division and payment.”

To this, little need be- added, for, whiie the learned counsel for the appellants, with much ingenuity, suggests that it would be a a fair and reasonable' construction to say that each trust terminated with the life of the beneficiary, followed by general and unlimited gifts of income to the various institutions, it will be noticed that there are no words in the instrument divesting the trustees of the title to the fund, hut, on the contrary, it provides for a continuation of the original trust and the payment of the income only forever. Moreover, the language is not susceptible of the view that Mr. Scoville intended a general gift of the income to such institutions, but, by express language, he gave such income to trustees, who were to receive and divide the same in the manner provided in the instrument. As such a trust was invalid, we think the conclusion of the learned trial judge on this branch of the case was correct.

Having, therefore, reached the conclusion that the provision in favor of the Rings, the primary beneficiaries, was valid, and that relating to the institutions or secondary beneficiaries invalid, the question remains as to what effect the latter will have, if any, upon the former. "We think that, although the trusts created in favor of the institutions are invalid, those in favor of the Rings, being severable and legal, can stand. (Underwood v. Curtis, 127 N. Y., 523.)

Upon the whole instrument, therefore, we are of opinion that a valid trust was -created in favor of one of the Rings, until her marriage, and in favor of the others until their death, and that, upon the marriage of one -or death of any of the beneficiaries, a portion of the fund, yielding the specific» share of the income to which he or she was entitled, should be severed from the trust and pass into the residuary estate, and that the judgment should be accordingly modified, without costs.

Judgment affirmed, with costs.


author: Lawrence, J.: O’Brien, J.: Van Brunt, P. J.:

text:
    EDWIN W. BUTLER, Respondent, v. GARRETT D. CLARK, Individually and as Administrator of SARAH CLARK Deceased, and Others, Appellants, Impleaded with Others, Dependants.

      SJieriff’s deed — action to reform it — ■ who are necessarypm-ties.

    Sarah Clark, wife of Garrett D. Clark, recovered, in September, 1879, a judgment against her son Edwin, against whom Johanna Donovan also recovered a judgment in 1883. In 1885 Sarah Clark died, leaving her surviving her son and a grand-daughter and her husband, who was appointed her administrator. In 1887 the sheriff of New York, Hugh J. Grant, sold, under the Donovan judgment, the interest of Edwin Clark, inherited from his mother, in No. 216 West Forty-third street, and in March, 1889, there having been no redemption, conveyed the property to John H. Birch, the purchaser, by a deed, the description in which was erroneous, in that it described the premises as being 151 feet west from Seventh avenue, when, in fact, they were 181 feet west thereof; but the. deed recited the street number correctly, and stated that they were the same premises of which Sarah Clark died seized.
    In August, 1889, Birch conveyed the premises io Edwin W. Butler, by a correct description, and soon after, and while James Flack was sheriff, Butler brought an action to reform the deed of Grant by changing “fifty ” to “ eighty ” in the description of the distance of the lot west from Seventh avenue, upon the trial of which action it was shown that Sarah Clark owned no other property in the street; that 151 feet west from the avenue was a point in the middle of lot No. 212, and that No. 216 had been so numbered since 1855.
    In this action the plaintiff filed a supplemental complaint, in which he alleged that, although Mrs. Clark’s judgment against her son ceased to be a lien upon real estate on September 18, 1889, yet that Sheriff Flack had, on October 23, 1889, sold, under that judgment, the son’s interest in No. 216 West Forty-third street to Garrett D. Clark for a certain sum, which he had not paid, and it prayed that
    ■ the completion of this sale be enjoined.
    Upon an appeal from a judgment in favor of the plaintiff;

      Held, that the judgment was proper.
    That it was plain that Sheriff Grant intended to sell, and did sell, No. 216 West Forty-third street.
    That common certainty was all that was required, in the description of real property, upon a sheriff’s sale under execution.
    That it was not necessary that Sheriff Grant should be a party to the action as no new deed was asked, but merely that a clerical error in an existing deed be corrected.
    That Sheriff Flack was a proper party, if for no other reason, because the plaintiff sought to have declared void his sale of the son’s interest to Garrett D. Clark in October, 1889.

      That Edwin Clark was a proper and necessary party, the main object of the action being to reform a deed executed upon a sale of his interest in the property.
    That the court properly refused to dismiss the complaint, as against Garrett D. Clark, individually, because the latter had admitted, by a supplemental answer, that on March 1,1891, Sheriff Flack conveyed to him all the right which Edwin Clark, the son of Sarah, had in the premises on September 18, 1889, at which date, as Sarah Clark was then living, Edwin Clark had no interest whatever in the premises. (Yan Brunt, P. J., dissenting upon the ground that Sheriff Grant was a necessary party.)
    Appeal by the defendant Garrett D. Clark, individually and as administrator of Sarab Clark, deceased, and by the defendants, Edwin Clark and Jessie Fremont Clark, from a judgment of tlie Supreme Court, entered, after a trial at tlie New York Special Term, in the office of tlie clerk of tlie city and county of New York on tbe 26tli day of May, 1892, adjudging that a deed, executed by Hugh J. Grant, late sheriff, to John JI. Birch, and a certificate of sale certifying that the sheriff had sold to Birch the right, title and interest of Edwin Clark in certain premises, be corrected and reformed by striking out the word “fifty” and inserting the word “eighty” in the distance, as stated, of the premises therein described west of Seventh avenue.

      William II. Arnouco for the appellants.

      Henry P. Starbucle, for the respondent.
   Lawrence, J.:

This action was brought by the above-named respondent, Edwin "W. Butler, as plaintiff, to obtain, as against the above-named appellants, Garrett D. Clark, individually, and as administrator of the goods, chattels and credits of Sarah Clark, deceased, Edwin Clark, Jessie Fremont Clark and others, who have not appealed, as defendants, a judgment reforming a sheriff’s deed, made pursuant to a sale under execution, of the interest of Edwin Clark in certain property in the city of New York. The action, as brought, had also certain other purposes which are immaterial upon this appeal. For the purpose of a full understanding of the case a chronological statement of the facts will be necessary.

On the 18th of September, 1879, Sarah Clark, the mother of Edwin Clark, recovered judgment against him for $1,725.56. On the the 10th of March, 1883, Johannah Donovan recovered judgment against Edwin Clark for $311.42 On the 8th of February, 1885, Sarah Clark died intestate, seized and possessed of the premises which form the- subject of this controversy and of certain personal property, leaving her surviving Edwin,Clark and a grand-daughter, Sarah E. Clark, now Mrs. "Worden, her only heirs-at-law. She also left her surviving the appellant, Garrett D. Clark, who has ever since been in possession of the premises as tenant by the courtesy.

On the 25th of February, 1885, Garrett D. Clark, the husband, was appointed the administrator of the estate of Sarah E. Clark. On the 2d of January, 1886, Edwin Clark conveyed his interest, as one of the heirs-at-law of Sarah Clark, to Celia K. Haynes, and, on the same day, Celia K. Haynes conveyed the same to Jessie Fremont Clark, the wife of Edwin Clark.

On the 7th of October, 1887, execution was issued on the Donovan judgment against Edwin Clark, and on the 6th of December, 1887, a sale was made by the sheriff under that judgment, at which sale the sheriff sold Edwin Clark’s interest in the premises, inherited from his mother, to John H. Birch; on the 15th day of March, 1889, this interest, not having been redeemed, was conveyed to said Birch by Hugh J. Grant, then sheriff of the city and county of New York.

The sheriff’s deed followed the description contained in the deeds by which Edwin Clark had previously conveyed the property to his wife, and, while describing the premises, in other respects, accurately by metes and bounds, located them erroneously as 151 feet, instead of 181 feet west from Seventh avenue. The sheriff’s deed, at the end of the description of the premises conveyed, contained the following recital: “ Being the same premises of which Sarah Clark died seized on the 8th day of February, 1885, and which are known as No. 216 West Forty-third street in the city of New York.”

It was shown on the trial that Garrett D. Clark was present, with his counsel, at the sale, and that he knew that Mrs. Sarah E. Clark was in possession of the premises at the time of her death, and did not hold title to any other property on that street at the time of her death; that the whole south side of the street was built up with a continuous row of houses, covering one lot apiece, and marking the locations and widths of all the lots to the eye ; that no lot commenced 151 feet west from Seventh avenue, but that the point on the south side of the street, lying at that distance west from the avenue, fell within a lot seventeen feet wide, four feet from one side and thirteen feet from the other, on which stood a house of which the street number was 212, and which was built in 1856; that there was no other lot nineteen feet wide, on the block, than No. 216 ; that the nearest in width of the narrower lots was seventeen feet wide, and the nearest of the wider lots twenty feet, the latter being 200 feet away; and that the house No. 216 covered the premises in question, and had been so built and numbered since 1855.

On the 30th of August, 1889, John Ii. Birch conveyed his interest in the premises to the respondent, by a deed in which it was correctly described ; and this action was commenced on the 3d day of September, 1889, to reform the sheriff’s deed by changing the word “fifty” to the word “eighty,” in the statement therein of the distance of the said lot, piece or parcel of land from the corner of Forty-third street and Seventh avenue.

It was alleged, in the complaint, that Edwin Clark’s distributive share of the personal estate of his mother exceeded the judgment held by the administrator, and that an error had béen committed in the sheriff’s deed, whereby the premises included therein were described as being 151 feet from the corner, instead of 181 feet, as it should have been. The complaint prayed for an accounting of the administrator to determine the distributive share of Edwin Clark; second, for the application of such distributive share to the • extinguishment and cancellation of the Clark judgment; third, if such distributive share is insufficient therefor, then to determine the excess, and compel the sheriff to pay the same; and, fourth, to reform the sheriff’s deed by changing “ fifty ” to “ eighty.”

The plaintiff subsequently filed a supplemental complaint, alleging that the judgment obtained by Mrs. Clark against Edwin Clark ceased to be a lien upon the premises on the 18th of September, 1889, and that on the 23d day of October, 1889, the said sheriff, under said judgment, sold the interest of Edwin Clark, in the premises he inherited from his mother, for $2,725 to Garrett D. Clark, but that he had not paid anything on account thereof; and prayed that said sale be declared void and abandoned, and that tne sheriff should be enjoined from completing the same.

The answers put in issue the material allegations of the complaint respecting the right of action in the plaintiff.

Several questions are presented by the appellants upon this appeal, but the main and radical question discussed by them is as to the alleged error of the justice presiding at the Special Term in refusing to dismiss the action as against all the defendants.

It is argued; in the first place, that neither the plaintiff nor Sheriff Flack was a party to the deed complained of, and that Sheriff Flack, as the official successor of Sheriff Grant, was not answerable for the errors or mistakes of the latter. This is true ; but’the admission of that fact is not conclusive upon the question whether the plaintiff is entitled to have the deed of Sheriff Grant reformed, if the court can see that, in point of fact, the latter not only intended to sell, but actually sold, the premises No. 216 West Forty-third street. Common certainty is all that is required in the descriptions of real property upon a sheriff’s sale under execution. (Code Civ. Pro., § 1485.) And, as was said by Mr. Justice Davis, in delivering the opinion of the Supreme Court of the United States in White v. Luning (93 U. S., 523) : “ In regard, however, to the description of the property conveyed, the rules are the same whether the deed be made by a party in his own right, or by an officer of the court. The policy of the law does not require courts to scrutinize the ju'oceedings of a judicial sale with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistently with legal rules, the object they were intended to accomplish.”

To the same effect is Farmers’ Loan and Trust Company v. Eno(21 Abb. N. C., 220); Hathaway v. Power (6 Hill, 453); Dygert v. Pletts (25 Wend., 402), and numerous other cases.

In Hathaway v. Power (supra) the court said: "Where the description given in a deed contains several particulars, all of which are necessary to ascertain the land intended to be conveyed, nothing but what will correspond with all those particulars can pass by the grant; but if there be certain parts sufficiently ascertained to locate the land, the addition of false or mistaken particulars will be rejected.”

In Dygert v. Pletts (supra) it was held, that a sheriff’s deed, conveying all the right and title of the defendant in an execution to a-lot of land, described as lying on the south side of a particular creek, in a given town and county, is not void for uncertainty in the description of the premises, although but a single line be given in the deed as a boundary, where the fact is shown that the defendant in the execution claimed to he the owner of the land situate between such line cund creek. Nelson, Ch. J., in delivering the opinion of the court in that case, said : “ Certainty to a common intent is all that is required, and if there be a certain number of particulars, given, sufficient to designate the thing intended to be granted, the grant will be effectual, though there may be others false and mistaken.” (Citing 6 Cow.,281.) “It should also be as favorably construed for the grantee as is consistent with the rules of law, ut res magis valeat, quam pereat."

In the case of Ousby v. Jones (73 N. Y., 621, opinion in full annexed to respondent’s brief), the Court of Appeals held that the clause in the description of property contained in a deed coming last, and seeming to be the.intention of the parties to the conveyance, must have a controlling effect upon all the phrases used by the draughtsman in setting forth the description of the premises

Bearing in mind the provisions of the Code of Civil Procedure above referred to and the principles enunciated in the cases just cited, we have no difficulty in coming to the conclusion that the premises intended to be conveyed by the sheriff were those known as No. 216 West Forty-third street, of which Sarah Clark died seized on the 8th of February, 1885. The error in locating the premises, as commencing at a point one hundred and fifty-one feet westerly, instead of one hundred and eighty-one feet westerly, from the corner formed by the intersection of the southerly side of Forty-third street and the westerly side of the Seventh avenue, does not, in our opinion, nullify the deed. The premises are sufficiently identified by the recital at the end of the description, and by the fact that Sarah Clark had never possessed any other property upon that street, and that she died in possession of the same. We think, therefore, that the judgment correcting and reforming the sheriff’s deed, by striking out therefrom the word “fifty,” and inserting in place thereof the word “ eighty,” in the distance as therein stated and given of the premises from the south-west corner of Forty-third street and Seventh avenue, is correct.

The plaintiff does not ask to have a new deed executed by the defendant Flack in lieu of that executed by Grant, the former sheriff ; he does not aslc for any other deed but simply prays that the deed actually executed may be corrected as to a clerical error, all of the parties who were shown to have any interest in the premises conveyed being before the court. He asks, in other words, to have an official act made to conform to the actual understanding and intent of all the parties. And for this purpose it was not necessary that Grant, the former sheriff, should be made a party to the action. On the evidence in the case, there can be no reasonable doubt as to what premises were intended to be conveyed, and it is the duty of a court of equity, on the facts quesented, to see that that intention is made clear upon the record.

It is contended, however, that Mack was not a necessary party to this action, inasmuch as he could not correct the alleged error of his predecessor. ~We have shown that he is not called upon to do so. But there are two answer’s to this objection on the part of the defendants. There is no answer or demurrer to the effect that there is a defect or improper joinder of parties in the action; and, secondly, Mack was a proper party to the action, because a portion of the relief sought by the plaintiff, in his supplemental complaint, was to have declared void an alleged sale by Sheriff Mack, under an execution issued on the judgment obtained by Sarah Clark against Edwin Clark on the 18th of September, 1879, and to restrain said Flack from making, executing, delivering or filing any certificate of sale or deed based upon said attempted sale, etc. (Barb, on Parties 758, and cases cited.)

The appellants further contend that the court improperly denied the motion to dismiss the complaint as against Edwin Clark, the judgment-debtor, through the purchase of whose interest on the sale and under the deed aforesaid, the plaintiff claims his title This objection we regard as unfounded, for the reason that the main object of this action is to reform a deed executed upon the sale of his interest; and, being a suit in equity, he was a pi’oper and necessary party in order that his rights might be ascertained, if any .he had, and protected, and that every person interested in the remotest degree in the premises sold should be before the court.

It is also contended that the court improperly denied the motion to dismiss the complaint as against Garrett D. Clark, individually. But this position is not tenable, for the reason that it was admitted •by the supplemental answer of the defendant Clark, that on the 31st day of March, 1891, Flack, as sheriff, had executed and delivered to him a deed bearing date on that day, whereby he conveyed to the defendant all the right, title and interest which the defendant Edwin Clark had on the 18th day of September, 1879, in the property in question, although, at that time, as Sarah E. Clark was alive, Edwin Clark had no interest in the property. The defendant Garrett D. Clark relies upon the same as giving him an interest in the property in his individual right, independently and distinctly from any right which he had in the premises, either as tenant by the courtesy, or as administrator of his wife’s estate.

The cases which are cited by the learned counsel for the appellants are not adverse to the views we have expressed. "Whatever doubt there may have existed theretofore, as to to the power of the court to reform a sheriff’s deed, in an action to which even the sheriff was not a party, was set at rest by the Court of Appeals in the case of Bartlett v. Judd (21 N. Y., 200), in which the case of Mason v. White (11 Barb., 173), which was supposed to sustain a contrary doctrine, is discussed. Mr. Justice Bacon, in delivering the opinion of the court, says, after showing that the facts in the case of Mason v. White were different from those in Bartlett v. Judd, and that in that case parol evidence, as to the intention of the sheriff in regard to the land intended to be sold, might well have been excluded: "But when the learned judge in that case states that, although, as between man and man, deeds may be explained and reformed by reason either of fraud or mistake, but that a deed of a sheriff cannot be thus reformed, he states a proposition for which I can find no authority in the books, and from which I am constrained to dissent. The only case referred to for this doctrine is Jackson v. Delancy (13 Johns., 539), which certainly decides nothing more than that, in a sheriff’s deed, the land must be described with reasonable certainty. The deed in that case having undertaken to convey, with two parcels well described, all the other lands of William Earl Stirling, in the county of Ulster, it was held to be void for uncertainty. No such principle as this was necessary to the decision of the case of Mason v. White, which can well stand without its aid. And if fully carried out, this doctrine would place both the certificates and the deeds of sheriffs utterly beyond the reach of the law, although its aid were vrnohed upon the dearest proof of inadvertence, mistahe or fraud”

It was within the power of the justice, who tried the cause at Special Term, to reopen the case upon notice to the parties, and to receive the additional evidence which is contained on pages 49 and 50 of the case. In that respect he had a discretion, and there is nothing to show that the discretion was abused. Indeed, it seems to have been wisely exercised, as it put the court in complete possession of all the facts of the case, and enabled it to adjust and settle the rights of the parties as justice and equity required.

We are of the opinion, therefore, that the judgment below should be affirmed, with costs and disbursements.

O’Brien, J.:

The judgment corrected the error in the description. No deed or act of Grant, as sheriff, was necessary for this purpose, and, apart from his former official relation, he was in no way connected with the property. All persons having an interest were made parties,, and the judgment could be rendered without the presence of the sheriff, against whom no judgment was asked, and from whom nothing was required.

I concur, therefore, with Hr. Justice Lawrence for affirmance.

Van Brunt, P. J.:

■ I dissent. I am of the opinion that Sheriff Grant was a necessary party to the action. I do not see what authority the court had to-alter an instrument executed by a person without giving him an opportunity to be heard.


author: Barrett, J.:

text:
    JOHN CRAIG, Appellant, v. MARIA CRAIG, alias MARIA LINDEN, Respondent.

      Seferee — after signing his report and notifying the parties of his decision his power is exhausted — the repoi't cannot he sent hack to him to decide as to costs.

    An action to annul a marriage was tried before a referee, who, having found for the defendant, signed his report without making any decision as to costs, passed upon findings proposed by the plaintiff, and notified the attorneys of his decision, but the report was not delivered nor filed.

      Upon motion tlie court, by order, sent tbe report back to tbe referee “for tbe purpose of bearing tbe argument of counsel and passing upon tbe question of costs.”
    Upon an appeal by tbe plaintiff from tbis order:

      Held, tbat, as tbe referee bad signed tbe report and given notice to tbe parties, bis decision was “ rendered ” witbin tbe meaning of section 1023 of tbe Code of Civil Procedure.
    Tbat no clerical error, technical omission or inadvertence being shown, tbe power of tbe referee,' as such, was exhausted.
    Appeal by tbe plaintiff John Craig from an order of tbe Supreme Court, entered in the office of the clerk of the city and county of New York on the 21st day of April, 1892, directing that the report of Herbert B. Turner, Esq., as referee, be recommitted to him “for the purpose of hearing the argument of counsel and passing upon the question of costs.”

      A. J. Skinner, for the appellant.

      Fdxocvrd S. Peek, for the respondent.
   Barrett, J.:

This case differs from Fairman v. Brush (15 N. Y. Supp., 44) and Schultheis v. McInerny (13 id., 684), in the fact that here the referee has decided the question sought to be reconsidered, and the object of recommitting the report is to induce him to change his decision.

In Fairman v. Brush we held, following Schultheis v. MeInerny, that the court had power to require a referee to make his findings sufficiently definite to raise the question presented upon the appeal. But this was all we decided. We did not question the well-settled rule that a referee had no power to alter his report after he has signed and delivered it. The real question here is, whether the referee had such power after signing his report and notifying the parties thereof, but before delivering or filing it.

We think not. In Ayrault v. Sackett (17 How. Pr., 509) it was held that “ signing the report, together with notice of the fact to the party entitled to it, are the definitive acts which close his (the referee’s) judicial authority in the case; or, rather, they are the acts which preclude his opening the case for further evidence or consideration.” The court there added that “ the controlling circumstance is, that the case remains in his (the referee’s) hands until the report is made and signed and the parties, or the one entitled to the report, is duly notified of it.” This case was followed in Kissam v. Hamilton (20 How., 376), where the court held that “the caséis not decided until the report is signed; until then they (the referees) may open it for further evidence, reconsider and change their conclusions.” The same rule was laid down in Quackenbush v. Johnson (55 How., 96) and in Waters v. Shepherd (14 Hun, 223). In Quackenbush v. Johnson it was held that, after the referee has made and signed his report, and notified the party entitled to it, his duty as a referee is ended. “He had no power thereafter,” said Noxon, J., “ to amend or alter his report.” In Waters v. Shepherd the report was made and the parties notified of its terms. Upon this the court observed: “ It was a completed thing and beyond the power of the referee to withhold or change it after the service of the notice.” The question as to when the case is actually decided should not be confused with questions relating to the termination of the reference for failure to deliver or file the report within sixty days after the cause is finally submitted. It is now settled that, to prevent the termination of a reference by notice under section 1019 of the Code of Civil Procedure, the report must be actually delivered to the attorney of one of the parties, or filed with the clerk within the limited period. (Little v. Lynch, 99 N. Y., 112.) But this has nothing to do with the question as to when the judicial function ceases. That occurs when the referee has actually decided the case, signed the report embodying such decision and notified the parties thereof.

It is thus that the decision is “rendered,” within the meaning of section 1023 of the Code of Civil Procedure. If the “ decision ” is not “ rendered ” until the report is actually taken up (that is, delivered,) or filed, what becomes of the provision contained in section 1023, that findings must be submitted before the decision or report is rendered % It surely was not the intention to permit such findings to be submitted after the referee has announced his judgment. We think the decision is rendered when such judgment (embodied in a report duly signed) is announced. Certain consequences flow from the failure to deliver or file the report, but neglect in that respect does not, while it continues, keep the judicial function in abeyance.

In tbe present case there was no clerical error, technical omission or inadvertence. The defendant’s counsel, in his brief submitted to the referee, asked for costs, yet the report concludes that the complaint should be dismissed, without costs. When the defendant’s attorney observed tins he paused, as he was about to take up the report, and expressed a desire to be heard on the question of costs. The referee then certified that he desired to hear counsel upon that subject, and to make such change or modification with regard to costs as might seem proper to him after hearing argument. He did not act inadvertently, however, for the defendant’s attorney tells us that the decision disallowing costs was because the referee “ did not think the question one of practical importance.” It appears, also, that the referee furnished the plaintiff’s attorney with a copy of the report, unsigned, and returned the plaintiff’s proposed findings, passed upon as required by law. Upon these facts the case is brought fully within the principle of First National Bank of West Troy v. Levy (41 Hun, 462), where an order was reversed which remitted a report to enable the referee to" supply an inadvertent omission to award costs. While it is not necessary for us to go to this extreme length, we think it entirely clear that, where the judicial function has once been fully exercised, the referee should not be reinvested with such function for the purpose of more deliberately reconsidering questions already passed upon and decided.

The order appealed from should, therefore, be reversed, with ten dollars costs and the usual disbursements, and the motion to recommit denied.

Yan Brunt, P. J., and O’Brien, J., concurred.

Order reversed, with ten dollars costs and the usual disbursements, and the motion to recommit denied.