Johnston v. Garvey

$1,000. The proceedings to sell the infants’ real estate was instituted upon the petition of their mother, the said Catherine Barrett, the alleged fraudulent grantor. She stated in that petition that she had held the title in trust for the said William P. Powers, to whom she had executed and delivered a deed, but that her father-in-law, Michael Barrett, induced her to execute and deliver to him another deed of said premises. (She was mistaken about that as the deed was to Bridget Barrett.) She set forth the facts with relation to the said suit then pending; that all of the adult heirs were willing to compromise it by a conveyance for $1,000; that the infants had no means to defend the suit, and were not in receipt of any income from the said premises which were in the possession of the plaintiff; that she was advised that they could not succeed in the defense of the action, and that it was to their advantage to carry out said agreement. The referee, appointed in the proceedings, found that the interest of the infants would have been worth $2,000 under ordinary circumstances, but in view of the condition of the title, it was worth only one-sixth of $1,000 or $166.67, and the special guardian was empowered to contract for the sale of the infants’ interests for a price not less than said sum, and that was the sum for which it was sold. The appellant claims that the proceeding was void because it did not appear that any of the reasons for the sale, specified in section 2348 of the Code of Civil Procedure, as it was in 1891, existed. Subdivision 2 of said section was as follows:

“Where the interest of the infant will be substantially promoted by such 'disposition, on account of the real property or term, or estate, or other interest in real property being exposed to waste or dilapidation; or being wholly unproductive, for the purpose of raising funds to preserve or improve the same, or for other peculiar reasons, or on account of other peculiar circumstances.”

I think that a case was presented, showing that the infants were receiving no income from the property, and that, for the “peculiar reasons” or on account of the “peculiar circumstances” shown to exist their interest would be promoted by a sale. It was to their interest to take what the adult heirs were willing to take rather than be beaten in a lawsuit. No doubt, the section of the Code, as now amended, specifically covers such a case; but I think that it was broad enough to cover it as it then existed. No claim is made but that the proceedings were in other respects regular. At the time of that proceeding, one of the infants was 20, and the other 19, years of age. Both united in the petition. There is no doubt that proceedings to sell infants’ real estate are absolutely void unless the statutory requirements are complied with, but it seems to me that the statute was strictly followed, and that there can be no doubt that the plaintiff’s testator procured whatever title Bridget Barrett had.

At the time of the Catherine Barrett conveyance, the premises were in the possession of William Hughes as lessee. There was testimony to the effect that, thereafter, William Hughes paid rent to Bridget Barrett with the consent of the said William P. Powers, and the court so found. There was.no direct evidence to show that the deed from Catherine Barrett to William P. Powers was ever delivered. It was

recorded after the death of said Powers at the request of one of his devisees. But its custody meanwhile was not explained. In an action for subrogation, brought by one who had redeemed the premises from tax sales, claiming to have an interest in them under a mortgage from Joseph Hughes, one of the said heirs of William Hughes, the Court of Appeals sustained a judgment in favor of the plaintiff’s testator, Joseph Hughes, on the theory that the conveyances by the heirs of Bridget Barrett vested the title in him, and that in view of the circumstances no presumption of delivery arose from the recording of the deed to William P. Powers. Koehler v. Hughes, 148 N. Y. 507 , 42 N. E. 1051 . The trial court found in this case that that deed was never delivered. A purchaser should not be required to take a title, the validity of which depended upon a question of fact whether a recorded deed had been delivered. However, those considerations and the decision of the Court of Appeals above referred to tend to reinforce the title under the Bridget Barrett deed which was recorded ahead of the William P. Powers deed.

There was evidence tending to show that the said John Hughes, if living at the time of the trial, would have been 84 years of age; that he was a sailor; and that in 1872 he went on a voyage to parts unknown, and was never thereafter seen or heard from by any of the members of his family. At that time he was unmarriéd. In 1899, a petition was presented to the Surrogate’s Court of New York county by the said Henry Hughes, asking for the appointment of an administrator of the said John Hughes, in which he set forth that the said John Hughes was born about the year 1830; that his occupation was that of a sailor; that at all times prior to 1872 he made his home and residence at 26 New Bowery, in the city of New York, to which place he was accustomed to return from his voyages; that in the year 1872 he went on a voyage and had never returned; that in February, 1899, a man, to the petitioner unknown, came to his place of business, informed him that he had been a shipmate of one John Hughes in the year 1876, whom he correctly described, and stated facts which he claimed the said John Hughes had communicated to him, relative to the latter’s family, which were true; and that the said John Hughes had died in the year 1876 at a port in the republic of Peru. The petition further stated that no word or communication whatever had been received from the said John Hughes after his departure in 1872. Upon that petition, a citation was issued, directed to all persons interested in the estate of John Hughes, deceased, his creditors, next of kin or otherwise; and upon the return of the citation, letters of administration were issued to the said Henry Hughes, and he finally accounted and was discharged. That evidence was sufficient to justify a finding of death intestate and without issue. Barson v. Mulligan, 191 N. Y. 306 , 84 N. E. 75 , 16 L. R. A. (N. S.) 151 .

Moreover, after this lapse of time it will be impossible to set aside the deed to Bridget Barrett. The admissions of Catherine Barrett made after her conveyance cannot be proven. To be marketable, a title need not be absolutely free from any possible suspicion of a defect. Hagan v. Drucker, 90 App. Div. 28 , 85 N. Y. Supp. 601 . Here, the

plaintiff’s testator united the two chains of title so far as it was possible to do so. The older title of record is undoubtedly good. In all human probability, he had a conveyance from all who could claim under the younger title of record; but if perchance John Hughes should be alive or should have died, leaving issue, there is not even a remote possibility that the older title of record can now be successfully attacked.

The judgment directs the payment of interest without taking any account of the rents and profits. One will doubtless offset the other, and the judgment may be modified by striking out the provision for interest, and, as thus modified, affirmed without costs. All concur.