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Campbell v. Morgan

22 N.Y.S. 1001 Court N.Y. Gen. Term Decision date 1893-04-14 English

Decision Majority — FOLLETT, J. · Concurring — VAN BBTJNT, P. J.

Contents

Majority

p. 1001
CAMPBELL v. MORGAN.
(Supreme Court, General Term, First Department.
April 14, 1893.)

Headnote

1. Deed—Estate Conveyed'.
An instrument reciting that, in consideration of certain services rendered hy M., “I do give, bequeath, and convey” to M. certain premises, “to have and to hold for her own personal use, and to dispose of in such manner and time as she may please,” carries the fee; the words “give and bequeath” being surplusage, and not affecting the validity of the instrument as a conveyance, which is a deed, and not a will.
2. Same—Description.
The description of the subject of the grant as “the house and lot of ground which we [the grantor and grantee] now occupy,” reference toeing made to an accompanying deed for a full description, is sufficiently definite to convey the property as against the grantor and his heirs.
3. Same—Delivery.
Delivery of the deed to a third person, under the provisions of the deed that it should not come into force until after the grantor’s death, and that such third person should be custodian thereof, and see that its provisions were complied with, is sufficient.
Case submitted on agreed statement.
Controversy between Mary Ann Campbell and William Morgan, submitted on an agreed statement of facts pursuant to section 1279, Code Civil Proc. Judgment for Mrs. Campbell.
On the 30th day of November, 1850, William Jarvis and Eunice B., his wife, •conveyed to Peter Broadfoot, by a warranty deed dated that day, and recorded December 30, 1850, in the cleric’s office of the county of Westchester, in Boole 155 of Deeds, page 298, the fee of a lot of land in the then town of West Farms, 117 feet and 8 inches long by 100 feet in width. The grantee entered into possession of the lot, resided thereon November 24, 1880, and continued to reside thereon until his death. He never parted with the. title, or any interest therein, until the execution of the instrument dated November 24, 1880. He died intestate April 16, 1881, leaving no descendants, but leaving several collateral relatives entitled to inherit any realty of which he died seised. Mary Ann Campbell was born March 18, 1847, and in 1853 she
p. 1002
was adopted by Peter Broadfoot, and thereafter, and until her intermarriage with James W. Campbell on the 30th of April 1891, was called Mary Ann Broadfoot. The adoption was not in the mode provided by the statutes of this state, but she lived in the family with Peter Broadfoot until his death, and was treated as an adopted child. July 11, 1866, the wife of Peter Broad-foot died, and thereafter and until his death the adopted child lived with and cared for him, acting as his housekeeper and nurse, until his death. November 24, 1880, Broadfoot signed, sealed, and December 7, 1880, acknowledged, and delivered to Andrew Milligan, an instrument of which the following is a copy:
“Broadway, Twenty-Fourth Ward, New York City, Nov. 24th, 1880.
“This document setteth forth that I, Peter Broadfoot, in my seventy-seventh year, of sound mind and memory, do, in consideration óf the fact that pay adopted daughter, Mary Ann Broadfoot, has, since the death of my beloved wife,, been my housekeeper, and been most devoted and self-sacrificing in her efforts to minister to my wants and comfort, and by her uniform kindness and companionship has done much to make my life pleasant and enjoyable; and also in consideration of the fact that were she so minded she could, in law and equity, claim in compensation for her services to me from the year 1866 until the present time: Therefore, for these and other reasons, I do give, bequeath, and convey to my adopted daughter, the said Mary Ann Broadfoot, the house and lot of ground which we now occupy, together with the entire premises, and all the real and personal property of every kind and name, to have and to hold for her own personal use, and to dispose of in such manner and time as she may please. A full description of the property herein conveyed will be found in the deeds accompanying this document, (except the personal,) which are signed and sealed in one package. And be it known and understood that this conveyance does not come into force until after my death and funeral, and that the package be not opened, or this document put on record, before my funeral has' taken place. I hereby appoint my friend Andrew Milligan, of 82 Third Ave., New York city, to be the custodian of these papers, and see that their provisions are duly complied with. Given under my seal and signature this 24th day of November, 1880.
“Peter Broadfoot. [B. S.]
“Witnesses: Andrew Milligan, 82 3rd Ave. [Seal.]
“State of New York, City and County of New York—ss.: On this seventh day of December, in the year one thousand eight hundred and eighty, before me personally came Peter Broadfoot, to me known, and known to me to be the individual described in and who executed the foregoing instrument, and acknowledged that he executed the same.
“Wm. H. Biblet,
“Notary Public, (No. 1.) City and County of New York, 3rd Ave., Cor. 9th St.”
When this instrument was executed, it and the deed from Jarvis to Broad-foot were sealed in an envelope, and delivered to Milligan, with directions to deliver them to his adopted daughter after his funeral, which was done, and since which time she has remained in the peaceable possession of the lot, claiming title thereto in fee simple under the foregoing instrument, which was recorded May 3, 1881,. in the office of the register of the city and county of New York, in Book 1594 of Deeds, at page 346. December 29, 1892, the parties to this submission entered into a written executory contract, by which Mary Ann Campbell agreed to sell, and William Morgan agreed to purchase, the premises described in said deed for $5,000. One hundred dollars of the pinchase price was paid on the execution of the contract, and the remainder was agreed to be paid on the 13th day of January, 1893,' when Mary Ann Campbell was to convey an unincumbered estate in fee simple in the premises to Morgan. Between December 29, 1892, and January 13, 1893, Morgan necessarily expended $94.25 for an examination of the title, which was reported to be defective, and on that ground he refused to take the deed tendered.
Argued before VAN BRUNT, P. J., and O’BRIEN and FO ÜLETT, JJ.
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James R. Marvin, for plaintiff.
G. De Witt Clocke, for defendant.

The question submitted is whether the instrument above set forth conveyed the premises in fee simple to Mary Ann Campbell. If the question is answered in the affirmative, judgment is to be rendered in her favor, that Morgan specifically perform his contract; but, if it is answered in the negative, judgment is to be rendered in his favor, against Mrs. Campbell, for $194.25, and interest thereon from January 13, 1893. The instrument was executed by the owner of the fee of the subject of the grant, a definite grantee is named, and the instrument has sufficient parties to- constitute a legal conveyance. The consideration recited is a valuable one, and sufficient to support a grant. The instrument contains sufficient words of conveyance:

“I do give, bequeath, and convey to my adopted daughter, * * * to have and to hold for her own personal use, and to dispose of in such manner and time as she may please.”

This language carried the fee to the grantee named. The words “give and bequeath” are surplusage, and do not affect the validity of the instrument as a conveyance, which is a deed, and not a will. The subject of the grant is described as follows:

“The house and lot of ground which we [the grantor and grantee] now occupy, together with the entire premises, ana all the real and personal property of every kind and name, to have and to hold for her own personal use, and to dispose of in such manner and time as she may please. A full description of the property herein conveyed will be found in the deeds accompanying this document, (except the personal,) which are signed and sealed in one package.”

This description is sufficiently definite to convey the title to the lot in question, as against the grantor and his heirs. Jackson v. De Lancey, 11 Johns. 365 , affirmed 13 Johns. 535 ; Jackson v. Delancey, 4 Cow. 427 -432; Pond v. Bergh, 10 Paige, 140, 156; Thayer v. Fenton, 22 N. Y. Wkly. Dig. 85; Scully v. Sanders, 44 N. Y. Super. Ct. 89 ; Wilson v. Boyce, 92 U. S. 320 ; Prettyman v. Waston, 34 Ill. 175 ; Bird v. Bird, 40 Me. 398 ; Harmon v. James, 7 Smedes & M. 111; Whitney v. Buckman, 13 Cal. 536 ; De Leon v. Higuera, 18 Cal. 483 ; Dyne v. Nutley, 14 C. B. 122 ; 1 Dart. Vend. & P. (6th Ed.) 602; 3 Washb. Real Prop. (4th Ed.) 399; 1 Jones, Mortg. §§ 65, 66.

The delivery was sufficient to vest the title in the grantee. Hathaway v. Payne, 34 N. Y. 92 . In the case last cited a deed was executed upon the stipulation “that the said deed shall not be delivered to Gideon R. [the grantee] during the life of Gideon [the grantor] and his wife, or either of them, but shall remain in the possession of Edward Herrendeen, of Farmington, or his executors, administrators, or assigns, to be delivered to the said Gideon B. Payne, his executors, administrators, or assigns, immediately after the decease of said Gideon Payne and Phebe, his wife, as a good and valid conveyance of all the lands therein contained.” The deed was executed in November, 1839. The grantor died November 23, 1848. His wife, Phebe, died April 3, 1854. The grantor left a

Concurrence

p. 1004
last will, by which he empowered his executors to “convey the real estate of which he should die seised.” The executors, on the 22d of June, 1854, after the death of Phebe, granted the land described in the deed of November 25, 1889, to one Hathaway, who brought trespass against Gideon R. Payne. A judgment was recovered by the plaintiff at circuit, and affirmed by the general term, but was reversed by tifie court of appeals, where it was held that the delivery by Herrendeen to Gideon E.-Payne, after the death of the grantor and his wife, vested the title in the defendant. See, also, Nottbecker v. Wilks, 4 Abb. Pr. 315 ; Grymes v. Hone, 49 N. Y. 17 -22; Hunter v. Hunter, 17 Barb. 25 ; Crain v. Wright, 36 Hun, 74 , affirmed 114 N. Y. 307 , 21 N. E. Rep. 401 ; 3 Washb. Real Prop. (4th Ed.) 301. The question submitted must be answered in the affirmative, and we hold that Mary Ann Campbell held the absolute fee of the land at the time she entered into the contract with Morgan, who must specifically perform his contract.

I concur. That a deed may be delivered by a grantor to a stranger, to be delivered to grantee after death of grantor, such second delivery relating back to the first delivery,, seems to have been long settled. Ruggles v. Lawson, 13 Johns. 284 ; Hatch v. Hatch, 9 Mass. 307 ; Shep. Touch, marg. pp. 58, 59; 2 Washb. Real Prop. marg. p. 586.

O’BEIEN, J., concurs.

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