Clark v. Crego

By the Court, Johnson, J. If the complaint was defective, as now suggested by the defendant’s counsel, it should have been demurred to. It may be that the complaint would have been held defective on demurrer, in not stating the nature and quality of the estate claimed by the plaintiff. But it does not follow, because it is defective in some particulars, that no cause of action is made out by the facts stated. Issue was taken upon the facts' alleged in the complaint by the answer, and new matters set up by way of defense, and there has been a full trial upon the merits. The first deed introduced by the plaintiff in evidence was properly admitted. It was executed by an agent of the Pulteney estate, and the general provision, requiring a certificate by the county clerk, does not apply to it. (1 B. 8. 759, § 19.) The deed from S. J. Scott and wife to Orlando Hastings was properly received in evidence, either as evidence of an original conveyance itself, or as evidence of the conveyance therein recited, as against the defendant, who is a privy in estate both with the grantor and grantee in that instrupient. (Cowen & Hill’s Notes, 160, and authorities there cited.) It is evidence that the premises had been, and were conveyed to Hastings for the uses and purposes therein mentioned. The conveyance was in trust, and so far as it provides for the receipt and application of the rents and profits by the grantee during the life of Rebecca Scott, creates a valid trust under the Revised Statutes. (1 B. 8. 728, § 55, sub. 3.) The [614] trust in this respect being valid, the whole estate vested in the trustee, subject to the execution of the trust, according to section 60 of the above cited statute. So far- as that conveyance undértpok to create an express trust in favor of John E. Scott, it being for purposes other than those enumerated in section 55 of the statute, the conveyance was valid as a power in trust only. (§ 58.) It gave him, no estate or interest in the land ; but the land was after held and continued in whose ever hands, otherwise entitled, it might come, subject to the execution of the trust as a power. (§59.) His right was a vested right to enforce the execution of the trust in his favor in a court of equity, and was clearly an assignable interest; and the assignee could enforce the execution of the trust power in equity, the same as the person for whose benefit the power was created. (1 2?. S. 735, §§ 103, 104.) The several conveyances by John E. Scott and wife to -the plaintiff did not, and could not operate to convey any title to the land, whether executed before or after the' death of Eebecca Scott; but looking at the manifest design and intention of the parties to those instruments, equity must hold them to operate as a complete and perfect assignment to the plaintiff, of the interest which John E. Scott'had in respect to the premises by virtue of the power in trust in the trust deed to Hastings. For that purpose, if for no other, they were properly received in evidence. Hastings, the trustee, died in March, 1862, before the trusts created by the deed, or any of them, had been fully executed. And the trust estate, with all the powers and duti^ of the original trustee, vested in this court, which had complete power to appoint some person to execute all the powers, and perform all the duties remaining unexecuted and unperformed by such original trustee. (1 2?. S. 730, § 68.) The trustee having died, leaving the trusts unexecuted, on the 17th January, 1862, upon the petition of the executors of the estate of such deceased trustee, Samuel L. Fuller was by order of this court appointed trustee of Eebecca [615] Scott, in the place of such deceased trustee, and was “ intrusted with all the powers, and charged with all the duties pertaining to the said trust.” Under this appointment, on the 23d of July, 1862, assuming to act as trustee under his appointment in the execution of the power in trust, Fuller executed to the plaintiff a conveyance of one half the premises according to the requirements of the trust deed to Hastings. A further order was obtained from this court on the 7th of March, 1864, expressly authorizing said Fuller to convey the premises in question to the plaintiff, under which order another conveyance was made of the same, on the 16th of March, 1864, The defendant’s counsel objected to these orders, and the conveyances under them, oh several grounds.' Amongst others was the objection that the defendant was entitled to notice of the proceedings to appoint Fuller to execute the trust; and also that Rebecca Scott and John R. Scott Were entitled to notice. I do not see upon what grounds they, or either of them, were entitled, as matter of law, to notice.. Conceding that some of them had,, or may have had, some interest in the question, it does not follow that they were entitled to notice. The objection principally relied upon, however, seems to be that under neither of the orders, was Fuller appointed as trustee of either Samuel J. or John R. Scott, or invested with authority to execute the powers in trust created by the trust deed. This, I think, is a mistake. By the last order he is expressly authorized and required to make this very conveyance, and upon the ground, as appears upon the face of such order, that doubts have arisen as to the extent of the powers of said Fuller under the first order, and whether said order is sufficiently explicit to enable him to execute a conveyance properly. If the court could confer the power, I do not see why it has not done so by these several orders. The objection that Fuller was not appointed to execute the trusts created by the trust deed, seems to me to he founded more in verbal criticism than in matter of substance. Looking at, all the proceedings, and the scope and [616] terms of both orders, no doubt should, I think, remain on this question. I am of the opinion, therefore, that the plaintiff, by means of these several conveyances to him, acquired a perfect title in fee simple to the moiety of the premises described in the complaint. The defendant’s claim of title to the entire premises, by virtue of his deed from the assignee of Samuel J. Scott, is defective, and can not prevail against the title of the plaintiff. The assignment by Samuel J. Scott was made November 6th, 1839, several months before the execution of the trust deed to Hastings, and apparently conveys to the assignees therein named, the premises in question, but it was never acknowledged or recorded. It was .first proved by the subscribing witness thereto, so as to make it admissible in evidence, on the 20th of January, 1864. The deed from the assignees, to the defendant, was executed Oct. 12,1863, about twenty-four years after the assignment. This deed was acknowledged within a few days after its date, by the grantors therein, but has never been recorded. The consideration named in it is one dollar only. .The trust deed to Hastings, or rather the subsequent deed of confirmation, was duly recorded, and all the plaintiff’s deeds, both from John R. Scott and Fuller, have been recorded in due form and manner. He is unquestionably a purchaser in good faith and for a valuable consideration, and his deeds being first recorded, must prevail against the conveyance from the assignees. There is no pretense that the plaintiff ever saw or heard of the assignment, until some time in 1864, which was long after he had become a purchaser. But independent of this, the defendant is precluded from setting up that Hastings had not a valid title, under the trust deed. He took title to the one undivided half of the premises from Hastings and Rebecca Scott, and the other moiety, that now claimed by the plaintiff, he occupied and held as the tenant of Hastings, under and by virtue of an agreement creating the relation of landlord and tenant. He can not now be permitted to say, as against the grantee [617] of Hastings, of this moiety, or of the person acting in his stead, that Hastings had no valid title. (Till. Ad. on Eject. 247, and cases cited.) [Monroe General Term, March 4, 1867. The remaining question is, whether the plaintiff proved enough to establish an ouster by the defendant, of him, the plaintiff, as co-tenant. This is generally a question of fact for the jury. But here there was no conflict of evidence on the point, and the defendant did not ask to have the jury pass upon it. Ho exception was, or could, therefore be taken for any error in not permitting the jury to pass upon it. The only question which can now be raised is whether the evidence was sufficient to have authorized the jury to find an ouster. The plaintiff, as appears, first served a written notice and demand of possession in common with the plaintiff, in July, 1862. He again made a similar demand, verbally, in 1864, before the commencement of this action. Such possession was not given to him by the plaintiff. In the mean time, between the two notices, the defendant takes a conveyance of the entire premises from a hostile source, and claims under it to be sole owner, and sets it up, in his answer, as a defense to the plaintiff’s claim. This was clearly enough to have warranted a jury in finding an ouster by the defendant. (Till. Ad. Eject. 56.) The defendant was not entitled to notice to quit, in such a case. (Livingston v. Tanner, 14 N. Y. Rep. 64.) The mesne profits were agreed upon. I am of the opinion, therefore, that there was no error, and that a new trial should be denied, and that the plaintiff have judgment on the verdict. Welles, E. Darwin Smith and Johnson, Justices.]