Birdsall v. Grant — 57 N.Y.S. 705

Majority

p. 705

(37 App. Div. 348.)

BIRDSALL v. GRANT et al.

(Supreme Court, Appellate Division, Fourth Department.

February 3, 1899.)

Headnote

Deed—Condition Subsequent.

A deed, by its terms conveying a title in fee, “subject, however, to the condition following: The second party is to devote, pay, and use the income and profit of said premises to and for the benefit, support, and maintenance of her son, C., during his natural life,”—does not create a trust, but conveys on a condition subsequent, which may be waived by the-person entitled to enforce it. ;

Appeal from special term, Wayne county.

Action by Charlotte H. Birdsall, as administratrix of the will of Thomas J. Birdsall, deceased, against Charles J. Grant, impleaded with M. Frances Grant, to foreclose a mortgage executed by defendants on the land conveyed to said M. Frances Grant by Lucy C. Grant. From a judgment for plaintiff, defendant Charles. J. Grant appeals.

Affirmed.

The following is the opinion of the court below (DUNWELL, J.)

The clause in the deed from Lucy C. Grant to M. Frances Grant which qualifies the fee is the subject of the controversy in this action. The deed, which, is in the usual form, by its terms conveys a title in fee, “subject, however, to-the condition following: The second party [M. Frances Grant] is to devote, pay, and use the income and profits of said premises to and for the benefit-support, and maintenance of her son, Charles J. Grant, during his natural life.” Plaintiff asserts the words in question to be a condition subsequent,, while defendants insist that they create a trust.

The intention of the grantor seems to have been to convey the fee to- hen-son’s wife, requiring her, however, to apply the income to the son’s support during his life. She might accomplish the object of her son’s support either-by a trust or a condition. She could confer upon M. Frances Grant a title to the real property, as trustee, or convey to her the fee upon condition. By-, the deed which she gave she used words presently vesting the title in fee.She did not employ any of the conventional words usually selected to convey ■ a title in trust. The language used created a title in fee. Immediately following the conveyance of the fee she imposes upon it the burden of her son’s, support. She, herself, calls it a “condition”; for she uses this language, “subject, however, to the condition following,” etc. It is not to be supposed): that because support and maintenance are permitted by the statute as one off the objects of a trust, all methods employed for the same purpose must necessarily be considered trusts.

p. 706

Here is a plain conveyance of a fee, and attached thereto a condition that <the income and profits are to be devoted to the support of another for life. "The condition being such that its performance necessarily takes place after the vesting of title, it falls within all the definitions of a “condition subsequent.’’ Underhill v. Railroad Co., 20 Barb. 459 , 460; Livingston v. Gordon, 84 N. Y. 142 , 143; Hogeboom v.. Hail, 24 Wend. 146 . Such a condition may be waived or released by the person entitled to enforce it. Wheeler v. Dunning, 33 Hun, 205 ; Ger. Real Estate, 116.

It follows that defendants could effectually mortgage the property; and, having done so, plaintiff is entitled to the usual judgment of foreclosure and sale.

Findings and judgment are directed accordingly.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, MCLENNAN, and SPRING, JJ.

F. E. Converse, for appellant.

8. N. Sawyer, for respondent.

Judgment affirmed, with costs, on the opinion of DUNWELL, J., delivered at special term.