Brundage v. Domestic & Foreign Missionary Society for the Episcopal Church in the United States

By the Court, Talcott, J. This is an action to foreclose a mortgage upon a farm in Angelica, Allegany county, executed by Henry A. L. Charles, to the plaintiff, on the 10th day of April, 1866, to secure the payment of the sum of $1000, with interest. The question presented is as to the title of the mortgagor, at the time of the execution of the mortgage. . The appellants claim in hostility to the title of Charles, and according to the settled rule of equity, a mortgagee cannot, in an action to foreclose his mortgage, call in to the suit parties claiming in hostility to the title of the mortgagor, and have the legal title adjudged in the equitable action. The question of legal title is a question of law, and to be determined in an action of ejectment, at law. In this case, however, the objection is not raised by the defendants. Both parties seem to treat this as an action to determine the legal title, and desire the court to decide that question. Under these circumstances we will proceed to examine that question. Hannah E. Charles, the mother of Henry A. L. Charles, the mortgagor, owned the premises in question in her lifetime, and died on the 16th day of February, 1864, leaving her last will and. testament, whereby she devised the premises in question to the said Henry A. L. Charles, with the following proviso or condition, viz : “ This devise is made on the express condition that the said Henry A. L. Charles removes to and resides on said land, and makes it his permanent home, which he must do within two years after my decease. If he fails to do so within that time, I hereby authorize and empower my executors [214] to sell the said real estate, on such terms as they may deem proper, convert the same into money, and pay over the avails, one half thereof to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America, incorporated by the State of ¡New York in the year 1846, and the other half of said avails they shall pay over to the American Board of Commissioners for Foreign Missions.” By the will, the testatrix appointed the defendants William Willson and John G-. Collins the executors thereof. The appellants put in an answer claiming that the devisee Charles had never complied with the condition of the devise, and that the title never vested in him. The action was referred to a referee, who, upon the testimony, found and reported as matter of fact, that at the time of the death of the testatrix the said Henry A. L. Charles resided at San Francisco, and that in December 1865 he disposed of his property in California, for the purpose of going to reside on the premises in question, and making them' his permanent home; and that within two years after the death of the testatrix, to wit, about the 1st day of February, 1866, the said Charles, in good faith, for the purpose of making them his permanent home, went into possession of and resided upon the premises, with his family, consisting of his wife and three children, and that the said premises continued to be his place of residence until about April 1st, 1866, when he left them, and has not since returned. That his wife becoming discontented, and desirous of returning to California, he changed his mind of continuing to reside on the premises in question, and consented to,- and did, in the spring or e^rly summer of 1866, return with his family to California, where he has ever. since resided; but that the premises have been occupied under him ever since.he went into possession. The referee finds, as a conclusion of law, from these facts, that when Charles so' took possession of the prem [215] ises and resided thereon in good faith, with intent and for the purpose of making the same his permanent home, he fulfilled the condition of the devise, and the title absolutely vested in him; and that his subsequent removal did not operate to defeat that title. [Fourth Department, General Term, at Syracuse, May 1,1871. We think the referee was correct in this conclusion of . law. It is manifest that the testatrix intended to devise an estate in fee, subject to the performance of the condition. That condition was, by its very terms, a condition which could be performed, and was to be performed, within two years from the decease of the testatrix. To hold that the title was defeated by the subsequent abandonment of the premises as a. place of residence, would be to treat the condition as one that could not be performed within two years, and on such construction it could not be fulfilled until the death of the devisee. • Such a construction would, we think, be contrary to the intent of the testatrix, as evinced by the language which she has used. Conditions, especially in restraint of alienation, are not to he extended by construction. The case of Mead v. Ballard (7 Wall. U. S. 290) seems quite analogous to the case at bar. The title, wé think, vested absolutely in the devisee when he commenced to reside on the premises with the Iona fide intention of making the same his permanent home, in full accordance with the condition imposed by the testatrix, and by such act the condition was fulfilled and forever discharged. The appellants, in their points, raise some question about the consideration of the mortgage. No such defense is set up in their answer, and if it were, it would present a question in which the appellants have no manner of interest. They do not claim under the mortgagor, hut in hostility to his title. The judgment should be affirmed, with costs. Mullin, P. J., and Johnson and Talcott, Justices.]