Doremus v. Doremus — 49 N.Y. St. Rep. 800

Majority

p. 800

Charles G. Doremus, Pl’ff, v. Arieanna M. Doremus et al., Def’ts.

{Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

1. Dower—Bar.

Where a wife executed and delivered to the committee of her lunatic husband an instrument whereby she released to him her right of dower, in consideration of certain articles of household furniture and a sum of money, and retained such consideration given her for seventeen years afler her husband’s death, never making any claim for dower, her right thereto is -barred.

3. Trust—When cannot be enforced.

Where a party voluntarily makes an absolute conveyance of property by deed for a valuable con ideration therein expressed, without any notice,

p. 801

actual or constructive, that the grantor claimed any interest in the property, such grantor will not be permitted, as against third parties who have acquired interests in the property, to allege a secret trust.

§. Partition—Sale—Notice to creditors.

Where a purchaser at a partition sale asks to be relieved^ from his purchase on the ground that the referee’s published notice to lienors gave the names of only two share owners, and that there were judgments docketed against a share owner in favor of persons who were not made parties to the action and did not appear before the referee, it appeared from the referee’s report that the judgment and mortgage creditors of one of the owners-whose name was published in the caption of the notice appeared before the referee and proved their claims, although not made parties to the action, and that as to the owners not named, the referee caused official searches to-be made, and found no liens against them, Held, that the pui\ haser’s objection was untenable.

Appeal from an order denying the motion of Max Lang, a purchaser of certain land an-d premises at a sale thereof by the referee in the above entitled action, to be relieved from his purchase.

Edwin Kempton, for app’lt; George Bliss, for resp’t Charles G. Doremus; Benj. T. Kissam, for resp’ts V. E. Doremus et al.; Joseph Fettretch, for resp’ts Crosby et al.

The action was brought for the partition and sale of various parcels of land and premises of which, one Peter C. Doremus was alleged to have been, in his lifetime, the owner, and to have died seized and possessed. At the sale, Max Lang, this appellant, purchased for $5,600 the house and lot situated on the southwesterly side of Livingston street, in the city of Brooklyn, distant 134 feet and 11 inches southeasterly from Smith street. After examination of the title, the purchaser served upon the referee a notice in writing of his objections, and made formal deman_d for repayment of all moneys paid and expenses incurred by him on account of the purchase.

The objections still adhered to by the purchaser are:

_ First objection : One Greorge F. Wing, a predecessor in the title, died intestate, seized and possessed of the premises, on the 13th day of November, 1875, leaving him surviving Annetta Wing (now Annetta Curry), his widow, and Marion F. Derby (now Marion F. Rockwell), his only child and heir at law. On the 8th day of May, 1878, Marion F. Derby conveyed the premises to Peter C. Doremus. The widow never released to him or his grantor her dower right. Greorge F. Wing, the decedent, had been, however, prior to his death, a lunatic under commission, and his wife, in his lifetime, to wit, on the 2d day of April, 1874, executed and delivered to Samuel H. Crook, as committee of the lunatic’s estate, an instrument purporting to release to him her right of dower. But the committee was never authorized to and never did convey away the fee in the premises, and the only title of Peter C. Doremus was such as he had acquired from the heir at law of the lunatic. The purchaser, therefore, objected that, said widow being still alive, the dower right still attaches. The widow was not a party to the partition suit. This objection

p. 802

to the title presents the question as to whether or not it was competent for a wife to release to the committee of her lunatic husband her inchoate right of dower in her husband’s lands, so that said lands should descend to her husband’s heirs at law free and acquitted from her dower right therein. The deed, dated April 2, 1874, between Annetta Wing and Samuel H. Crook, as committee of the person and estate of George F. Wing, lunatic, and which was properly acknowledged and recorded in 1874, shows that the release of dower was made in consideration of certain articles of household furniture and the payment to her of the sum of $2,500. The question thus presented on these facts is in principle governed by the case of Jones v. Fleming, 104 N. Y., 430 ; 5 St. Rep., 695 , wherein the court said:

“It is provided in the Revised Statutes, 3 Rev. St. (7th ed.), p. 2198, § 12, ‘ that if before her coverture, but without her assent, or if after her coverture, lands shall be given or assured for the jointure of a wife, or a pecuniary provision be made for her, in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whether she will be endowed with the lands of her husband, but she shall not be entitled to both.’ ”

In this, as in that, case, the contract Was made with the committee of the lunatic, and it here appears that the widow retained, and still retains, the consideration given her by the committee of her husband, and that she has never made, during i he seventeen years since her husband’s death, any demand for ■m admeasurement of her dower, or any claim in regard thereto. The case of Jones v. Fleming is, therefore, an authority holding that, under such circumstances, her right of dower is barred.

Second objection : Actual notice was given the purchaser by Marion F. Rockwell that she claimed to be the owner of.the premises in question, and that Peter C. Doremus had never in reality paid her anything as a consideration for her conveyance to him, but at the time of his death held the property in trust for her, and under an agreement to secure the same to her by his last will and testament, or otherwise. In further urgency of such claim said Marion F. Rockwell has commenced an action in this court to compel a conveyance to her of the premises by the heirs at law of said Peter C. Doremus, and the summons and complaint in such action and notice of pendency of the same were filed in the office of the clerk of Kings county on the 29th day of June, 1892. Marion F. Rockwell was not a party to the partition suit, and her rights, if any, have thus not been con-eluded. In answer to this objection, it was shown that the deed given to Peter C. Doremus was a full covenant warranty deed for a valuable consideration, expressed therein, which deed was recorded in May, 1873. It is not claimed that any notice, actual or constructive, was given in any way, or that she made any claim until June, 1892, when she commenced the action referred to in the objection. It was shown that between the date and recording of the deed in May, 1878, and the beginning of the suit by Marion F. Rockwell in June, 1892, third persons had, in good faith, with

p. 803

out notice, and for a valuable consideration, acquired interests in the property. It also appears that the summons, complaint, and notice of pendency of action were filed in this cause on May 9, 1888, and that judgment directing sale by a referee was entered in February, 1890. The purchaser concedes that the third parties who, either by purchase or by taking mortgages, acquired interests in the property, did so in good faith, and without any notice, actual or constructive, of the claim now made by Marion F. Rockwell, or “ that the deed made by her to Peter C. Doremus was given to or received by the said Peter C. Doremus under any agreement in her favor, express or implied,” and without any notice, actual or constructive, that the said deed was anything other than on its face it purported to be, namely, an absolute conveyance in fee simple for a good and valuable consideration. This concession as to the knowledge possessed of any such claim by third persons who acquired interests in the property seems to dispose of this objection, because, under such circumstances, Mrs. Rockwell, having voluntarily made an absolute conveyance, could not be permitted, as against them, to allege-a secret trust.

Third objection : The complaint and all the papers throughout the partition suit erroneously describe the premises, and place them a block away from their real location, namely, southwesterly from the southerly corner of Smith and Livingston streets, instead of southeasterly therefrom. The referee’s published notice to lienors gives the names of only two share owners, and describes the property erroneously; and there are judgments of record in Kings county against share owners, in favor of parties who never appeared before the referee, and who were not parties to the action. The referee sold the premises on February 29, 1892, under the-notice of sale containing the error of location. After sale, but before confirmation, an order nunc pro tune, dated April 2, 1892, was entered in New York county, purporting to cure this error of location. It is conceded that the deed to Wing correctly described the premises as the one from Mrs. Rockwell to Doremus, and the error which crept into the preliminary preceedings in this-action was due to a clerical mistake in describing the property as a certain distance southwesterly instead of southeasterly, from the southerly corner of Smith and Livingston streets. This error in the description was subsequently corrected by amendment, so as to describe the premises in question just as the purchaser claims it ought to be; and it is conceded that, upon such amendment, and by the referee’s supplemental report of sale, the error in the description was corrected; and, subsequent to this, by final judgment, this report of the referee and the amendments made in the proceedings with reference to the description were ratified, confirmed and approved.

The most serious question presented upon this appeal has reference to the alleged insufficiency in the notice to creditors. But this, we think, was cured by the steps taken to correct the error. The affidavit in support of -this objection shows that “ there are judgments docketed in Kings county against Charles Gr. Doremus,

p. 804

the plaintiff, in favor of persons not parties to the action, which were not presented to, considered by or reported upon by the referee in this action.” So far as Charles Gr. Doremus is concerned, and creditors having .claims against him, we think the notice was sufficient, for he was in express terms named in the caption of the notice published, and it appears from the ref eree’s report that judgment and mortgage creditors of Charles Gr. Doremus, not parties to the action, appeared and proved their claims pursuant to such notice. In addition, the referee reported that he had published the notices, and caused official searches to be made; and, after having passed upon the claims presented against the interest of Charles Gr. Doremus, he finds, with respect to the shares of the other parties, as follows:

“That there is no other general lien or incumbrance by judgment or decree upon the undivided share or interest of either of the parties in the premises ; and ho creditor not a party to this action, having any general lien on any undivided share or interest in the premises by judgment or decree, appeared before me on. such reference to establish his claim in pursuance of the notice published by me as aforesaid.”

It appearing that the objection of the purchaser was based upon judgments and claims outstanding as against Charles Gr. Doremus, one of the parties, with reference to whom, as we have shown, the notice was sufficient, resulting in the presentation of certain claims before the referee, and it not being made to appear that there are any claims outstanding as against him or any other person having an interest or share in the premises, we fail to see how.this objection can be upheld. It would, no doubt, have been the better practice to have had the notice contain the names of all the parties to the action. But whatever injury might have resulted from a failure so to publish, it seems reasonably certain that this was ■cleared up by the official searches which were made by the referee with respect to the interests of all the parties to the suit. In view of the conclusion reached by the referee that there were no other liens against the premises than those reported by him, and, in the absence of evidence showing that any other liens existed, we think this objection untenable. It is true, as claimed by appellant, that the court will not compel a purchaser to take a doubtful title, or an unmarketable one, nor will he be required to complete his purchase in case of reasonable doubt; but the decisions which support this view do not go to the extent of holding that a purchaser can demand a title absolutely free from all suspicion or possible defect. In this case the questions presented are somewhat involved and require a marshaling of the facts, and deliberation thereon, for their srtlution. Having such facts before us, while questions respecting the title may from time to time arise, we do not think they are sufficiently grave to affect the title to the property, or place the rights of the purchaser in jeopardy. We are of opinion, therefore, that the order appealed from should be affirmed, with costs and disbursements.

Barrett, J., concurs.