Hubbard v. Housley

The action was brought for the partition of certain property in the city of New York, and judgment was entered directing a sale. Accordingly the referee on the 11th day of January, 1899, sold the premises for the sum of $23,600. It was arranged that the title should be closed and the deed delivered on the 10th of February, 1899. Immediately after the sale the purchaser took possession of the premises and advertised them for sale, and he

The property which was the subject of the action was situated upon Greenwich street, in the city of New York. The title to the property had been vested in one James H. Noe, who by his will devised it to his children. One of those children (William Noe), who had become the owner of an undivided fourth of said premises, conveyed it by deed to his mother, Ann L. Noe. By her will, Mrs. Noe, after other bequests and devises, made the following:

“I give, devise, and bequeath all the rest, residue, and remainder of the property and estate, real and personal, of which I shall die seised or possessed, unto my executors hereinafter named,” etc., “in trust to take possession of my residuary estate, and to convert the same, or such part or parts thereof as it may be necessary so to do, into money, by public or private sale,” and to make conveyances thereof, and, "upon the final settlement of my estate, to divide the net proceeds of my said residuary estate into four equal parts, and dispose of said parts as follows, viz.”

Then follows a direction as to the disposition of the residuary estate, which it is not necessary to consider, further than that one of said parts is by the will given to William Noe.

Mrs. Noe died before her son William. In this action her executor, James H. Noe, was made a party defendant, but William Noe was not. The purchaser claims that the devise quoted above from Mrs. Noe’s will did not convey any title to the executor, and therefore the undivided fourth of the land of which she was seised descended at her death to her four children, and that William Noe, one of those children, was the owner in fee of an undivided fourth part of Mrs. Ann Noe’s interest, being one-sixteenth of the whole premises, and that he, as such owner in fee, should have been made a party defendant in the action. Because he was not so made a party defendant, the purchaser claims that the title is defective. The single question is whether the clause of Mrs. Noe’s will which is quoted above operated to vest the title to her undivided fourth of the premises in her executor, because, if it did, it was not necessary to make any other person a party to the action, in respect of that portion.

The land was given to the executor in trust to convert it into money, and to divide it among certain legatees. This trust is one which is permitted by the second subdivision of section 55 of the Revised Statutes, which authorizes the creation of an express trust to sell lands for the benefit of legatees. 1 Rev. St. p. 728, § 55 (Real

In considering this question it is to be noticed, in the first place, that to constitute a valid express trust, or to authorize the receipt by the executors of the rents and profits, it is not necessary that the purpose shall be stated in the precise words of the statute, or that the power to receive the rents and profits should be given to him in so many words. It is sufficient if .there is to be implied from the whole devise, taken together, an intention that the executor shall receive the rents and profits, and, therefore, that the trust shall be created. Morse v. Morse, 85 N. Y. 53 . This will, in express terms, authorizes the executor to take possession of the land. By the terms of it, he alone was entitled to go "into possession of Mrs. Noe’s interest in that property. None of the heirs had any right to interfere with it. The taking of the rents and profits of land is a necessary incident of its possession. Whenever the power is given to one to take possession, everything that goes with the possession necessarily follows it. One of these things is not only the control of the premises, but the right to take whatever comes from them. The possession gives the exclusive dominion over the land, and the one to whom the possession is given takes necessarily with it a vested right of enjoyment in the land, and everything that grows out of it. At common law, originally, the only way in which an estate in freehold could have been created was by taking the purchaser to the land, putting him in physical possession of it, or giving him a clod of the earth in token of that possession (4 Kent, Comm. 448; Leake, Real Prop. 46); and when he had possession he had the full seisin, and an absolute right of enjoyment in the fullest extent. So, when this will gave to the executor the right to take possession of the premises, it gave to Mm, as a part of that possession, the right to. the rents and profits of the land. Lent v. Howard, 89 N. Y. 176 ; Frantz v. Ireland, 66 Barb. 387 ; Leake, Real Prop. p. 46.

But it is said that the right to take the rents and profits in this case did not exist, because there was no disposition of them after they reached the hands of the executor; and it is insisted that authority to the executor to take the rents and profits of land, where he is not called upon to make any disposition of them, will not vest Mm with title to the premises, because no trust is created thereby. This proposition of the appellant is answered by the opinion of the

. We have examined the cases cited by the appellant in support of his contention. In Noonan v. Brennemann, 54 Super. Ct. 337, there was nothing in the will which gave to the executors any more than a power of sale, and there was no attempt by it to take the title away from the heirs until that power of sale was exercised. In the case of Cooke v. Platt, 98 N. Y. 35 , the trust was to sell in the discretion of the executors, or to divide the estate between certain-children ; and it was held that the trust was not one authorized by the statute, because there can be no trust to sell lands for the benefit of legatees unless the direction to sell is absolute. For that reason the court held that no title passed to the executors. We have examined the other cases, and we do not find that they bear upon the question involved.

In our opinion, the appellant is not in a situation to raise here the objection that the lot sold to him does not correspond to the description. It seems that the survey was procured to be made on the 23d of January, 1899; that the purchaser went into possession at that time, and remained in possession for some time,—just how long does not appear. The closing of the sale was postponed from time to time at the request of the purchaser. Finally, on the 20th of February, at the time of the postponement, and, it is to be assumed, as a condition of it, it was agreed by the purchaser that, if no other objections be raised as to the property, the objection as to the dimensions would be waived. The “other objections” spoken of there must mean other valid objections. If it were otherwise construed, it would be of no effect, because the purchaser might put himself in a situation to raise an objection to the dimensions by insisting upon any other grounds, to relieve him from taking the title, however frivolous they might be, and whether they existed or not. So, unless he was able to raise some other valid objection, he is not in a sitúa

Upon the whole case, we think the order should be affirmed, with §10 costs and disbursements. All concur.