People v. Open Board of Stock Brokers Building Co.

Finch, J. An examination of the title questioned by the purchaser discloses two deeds, which constitute links in the chain, from an executor to a third person, and from the latter back to the executor under whom, as an individual, the present vendor claims. The deeds are dated within four days of each other, and were recorded upon the same day with an interval of but five minutes between. The person through whom the title thus passed to the executor bore the same family name, arid a search in the surrogate’s office shows that no accounting or settlement of the estate has been had before that officer. The deeds in question were made in 1863. The receiver gives no explanation of these facts, proves no ratification by those interested under the will of Meier, and relies wholly upon their presumed acquiescence evidenced by the lapse of time. It is impossible to avoid the inference that the conveyance by the executor and the deed back to him were one transaction, and that the trustee acted in the double capacity of seller and purchaser of the trust property. His title, therefore, was voidable by those whom he was bound to protect, but whose interests were endangered by the collision with his own. (Davoue v. Fanning, 2 Johns. Ch. 252; Gardner v. Ogden, 22 N. Y. 327 ; Forbes v. Halsey, 26 id. 53 ; Van Epps v. Van Epps, 9 Paige, 237; Duncomb v. N. H & N. Y. R. R., 84 N. Y. 199.) The purchaser here is not protected as one buying in good faith and without knowledge of the breach of trust, for he has ascertained the facts, so far as they are known, before any acceptance of the deed or payment of- the purchase-money. (Wormley v. Wormley, 8 Wheat. 449.) Nor is the lapse of time conclusive upon the beneficiaries under the will of Meier. Twenty years had not elapsed when this attempted sale was made. In Hawley v. Cramer (4 Cow. 735), it was said that an application to set aside the sale must be made within a reasonable time, of which the court must judge under all the *104 circumstances, and twenty years was named as the shortest period which a court of equity would be bound to consider an absolute bar. If a resale was refused after eighteen years (Gregory v. Gregory, Coop. Ch. Gas. 201), and after sixteen years (Bergen v. Bennett, 1 Caine’s Gas. in Error, 1), on the other hand in Hatch v. Hatch (9 Ves. 292), the sale was set aside after the lapse of twenty years; in Dobson v. Racey (3 Sandf. Ch. 66), after twenty-seven years; in Purcell v. McNamara (14 Ves. 91), after seventeen years. Of course in all these cases diverse and varied circumstances operated to affect the judgment of the court and produced very different results, but they show that such time as has elapsed in the present case is not necessarily conclusive, and that the purchaser taking the receiver’s deed, and in total ignorance of the occasion or circumstances of the delay, would run the risk of an adverse decision and hold at the best only a doubtful title. Infancy, ignorance, concealment, or misrepresentation might come to explain and excuse the delay, and prevent it from amounting to acquiescence. We think the General Term were, therefore, right in holding the proffered title defective, but should have relieved the purchaser wholly from his contract. Admitting the title to be bad, but assuming that it might thereafter be made good, the court directed that the purchaser should take the premises if the seller should produce sufficient evidence to be taken in a proceeding which should be instituted by action or motion within sixty days, showing a confirmation of the executor’s purchase by the proper parties. The effect of this order was to change utterly the purchaser’s contract, and bind him to an agreement which he never made. It left the period of performance entirely uncertain and indefinite. The seller could begin his proceeding within sixty days, and after that was free to pursue the litigation at his pleasure, while the purchaser remained bound for an unknown period, with no guaranty of getting a title in the end. We can find no authority for such an order. In actions for specific performance, the courts have sometimes decreed that the purchaser should take title when its defects were cured before the final hearing, although exist *105 ing at the commencement of the action (Dutch Church v. Mott, 7 Paige, 85; Grady v. Ward, 20 Barb. 543), but have never gone so far as to hold the action open and undetermined to enable the seller to bring a suit against other parties, and try the experiment of an effort to secure a good title at some uncertain date in the future. In this respect the order of the General Term was wrong and should be reversed, McMillan be relieved from his purchase and repaid his deposit and auctioneer’s fees with interest thereon, together with the reasonable expenses of investigating the title, and costs of the appeal to the General Term and to this court. All concur. Ordered accordingly.