Van Brunt, P. J. This action was brought to recover $1,000, the amount paid by the plaintiff under a contract for the sale to him by the defendant of the premises, 61 Bayard street, in the city of Yew York, it being alleged that the title offered was defective in two particulars: First, that an undivided third interest in said premises is vested in the heirs at law of Maria Burn-ham; and, second, that the defendant has no power as executor of the will of Joseph Y. Lord, deceased, to sell and convey an undivided fourth part or interest, which, on the death of Maria Tweedy, a daughter of said testator, vested in possession in her lawful issue.
In 1815, the premises in question were owned in fee by the six children and heirs at law of George Thompson, deceased, namely, George Thompson, John G. Thompson, Elizabeth Pinckney, the wife of Elijah Pinckney, Dolly Lord, the wife of Joseph Y. Lord, Magdalene Crook, widow, and Maria Burnham, the wife of John A. Burn-ham. The first four of the heirs above named, and their respective wives and husbands, executed a deed to Magdalene Crook of two undivided third parts of said premises.
This deed is dated September 20,1815, and is in form a bargain and sale deed, with a covenant against grantors’ acts, and expressing a consideration of $2,666.64. This deed was signed by all the grantors, and acknowledged the day of its date; Maria Burnham, the only heir of George Thompson not a party to it, proving the identity of two of the grantors to the officer who certified the acknowledgment. This deed was'recorded on the 6th of October, 1815, for and at the request of Magdalene Crook.
Mag 17 dalene Crook thus upon the execution of this deed became the owner of five-sixths of the property. In 1817, Magdalene Crook conveyed one-half of the premises to Joseph N. Lord, in trust for the benefit of her sister Maria Burn-ham. In 1825, the trust estate was reconveyed to Magdalene Crook, and Maria Burnham also conveyed to Magdalene Crook the undivided sixth part inherited by her, for the consideration of $666.67.
The last two deeds were acknowledged on the 7th of February, 1825, and on the same day Magdalene Crook made her will. The will gives a life-estate to Maria Burnham, and a second life-estate to John Francis Burnham, (both of whom are dead,) and remainder in fee to Joseph FT. Lord, the defendant’s testator. Joseph FT. Lord died in 1857, when the defendant found among his papers certain deeds.
In 1865, he observed four unrecorded deeds, one of which was a deed bearing date September 9, 1815, and is in form a deed with full covenants and warranty from the same eight grantors, who, on September 20, 1815, executed the deed to Magdalene Crook, expressing the same consideration, and conveying the same undivided interest to Magdalene Crook and Maria Burnham. This deed is only partially executed by the grantors named in it; the wives of George and John G. Thompson not having signed it.
The defendant then caused this deed and the others to be recorded on the 6th of September, 1865.
Joseph N. Lord left a will, by the eighth clause of which he disposes of his residuary estate as follows: One fourth part thereof he gives, devises, and bequeaths to his executors in trust to rent and invest, and to collect and receive the rents, issues, and profits, and apply the same to the use of his daughter Maria Tweedy for and during her natural life, and upon her death to convey and pay the said fourth part unto and among such of her lawful issue as may be then living, and the issue of any who might be then dead.
The clause also contained a similar devise of one-fourth of the residuary estate to the executors in trust for the benefit of each of three other daughters of the testator, and a similar gift of each fourth to the issue of each daughter. The ninth clause is as follows: “Ninth.
I hereby authorize and empower my said executors, and the survivors and survivor of them, and such and whichever of them as shall act, at their or his discretion, from time to time, and at any time or times, to sell and dispose of the whole or any part or parts of my estate, both real and personal, and, in the meantime, my said executors, and the survivors and survivor, and such and whichever as shall act, are and. is hereby authorized to collect and receive the rents of the whole and every part of my real estate.” Maria Tweedy, the first life beneficiary under the eighth clause of the will, having died, leaving children, the trust for her benefit has terminated, and the undivided fourth of the real estate of the testator forming part of the capital of such trust is vested in the children of Maria Tweedy, in possession, and one of the.questions involved is whether such children took such real estate subject to the general power of sale given to the executors in the said ninth clause.
It is clear that the alleged deed of September 9, 1815, is wholly void and inoperative for want of delivery. In order that there should be a due execution of a deed, it must not only be sealed and signed, but it must also be delivered; in fact, delivery being the only thing which could make a deed operative.
Hence the significance of the clause contained in the clause and "signed by witness in all old deeds, “signed, sealed, and delivered in presence of. ” Neither the sealing, nor the signing, nor the acknowledgment of the deed, is of any effect so far as making the deed operative and effectual is concerned, unless they are followed by delivery. It seems hardly necessary to cite authorities to sustain this elementary proposition.
But the cases of Fisher v. Hall, 41 N. Y. 416, and Bryant v. Bryant, 42 N. Y. 11, sufficiently establish it. It is true that where a deed appears upon the record, the recording is regarded as prima facie evidence of delivery. But it is also true that such evidence of delivery may be rebutted even where the recording is apparently regular.
In the case at bar, the deed hav 18 ing remained in the possession of one of the grantors for 50 years after it was sealed and signed by a portion Of the grantors, and the fact that another deed was signed, sealed, and"delivered by all. the grantors of the same premises within a few days thereafter, raises the inevitable conclusion that the first deed was never intended to be operative, and had never been delivered.
It is true that a court of equity will not impose a doubtful title upon a purchaser, and that the purcha'ser is entitled to a marketable title, and that a title open to a reasonable doubt is not a marketable title, and that the court cannot make it such by passing upon an objection dependent upon a disputed fact or a doubtful question of law in the absence of the party in whom the outstanding rights are vested. But in the ease at bar, no such rules are applicable as to the point now under consideration.
It is apparent upon the very face of the record itself, upon the face of the deeds themselves,, that the alleged deed of September 9, 1815, was never executed by all the grantors, and never recorded until 50 years after the subsequent deed had been recorded, and then such deed of the 9th ■ September, 1815, was recorded without any authority in the party making the record to cause the same to be recorded; and, also, that Maria Burnham knew of the existence of the second deed, and that she was not a grantee named therein, which is evidenced by the fact that the identity of two of the grantors in said deed was proven to the master in chancery by her oath and examination.
From the foregoing uncontrovertible facts, no other conclusion can be drawn, but that said deed of the 9th September, 1815, had never been delivered, and never became operative.
The next objection is that the defendant, as surviving executor of Joseph N. Lord’s will, had no power of sale as to one-fourth of the premises in question; that the power vested in the defendant, under the will of Lord, ceased on the death of Maria Tweedy, and the title to her undivided share passed to lier children, subject to the exercise of the power of sale by the executor.
This objection seems to raise a question in regard to which an authoritative determination cannot be made in the absence of the children of Maria Tweed)’, deceased. It may be claimed with great force that this power of sale terminated upon the cessation of the trust as to any portion of the estate, —as to that portion.
It is to be observed that the testator makes separate trusts in favor of his four children, giving one-fourth of his property to his executors in trust to rent and invest, and to collect and receive the rents, issues, and profits thereof, and to apply the same to the use of one of his daughters for and during her natural life, and upon her death to convey and pay the said fourth part unto and among her lawful issue who may be then living, and the issue of such as may be then dead.
Upon the death of any one of these daughters the estate held in trust for such daughter descended immediately to her children. 1 Rev. St. p. 730; § 67; In re Livingston, 34 N. Y. 567. Now, under the power of sale, the executors are authorized to sell in their discretion from time to time, and at any time or times, the whole or any portion of his estate both real and personal.
But this power is coupled with the piovision that in the meantime, that is, until the sale, his executors aré authorized to collect and receive the rents of the wh.ole and every part of his real estate. Now it cannot be claimed that after a.portion of this estate has descended to the grandchildren of the testator that the executors are entitled by force of the power contained in the will to collect the rents and profits thereof. This portion of the estate is relieved from the trust.
The executors by virtue of the will, therefore, could not collect the rents. The owners of the fee would be entitled to collect the rents. It is true that it is claimed by the respondents that as tenants in common the executors would have a right to collect the rents. But it is clear that they could not do so by virtue of this clause contained in the will. What did the testator mean ? Did he not mean that as long as the property remained unsold and the trust continued, his ex 19 ecutors should collect the rents?
It seems to us that this question is of so doubtful á character that unless upon'a proper action brought, having all the parties to be affected by the adjudication before the court, no authoritative determination can be given. It would seem, therefore, in view of this condition of things, that the title is not free from reasonable doubt. The plaintiff, therefore, should not be compelled to take this title, and hereafter be called upon to defend the same against the claim of the grandchildren of the testator.
Under all the circuinstances of the case the plaintiff was entitled to recover. The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide event.
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