Campbell v. Morgan — 52 N.Y. St. Rep. 648

Majority

p. 648

Mary Ann Campbell, Pl'ff, v. William Morgan, Def't.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

1. Deed—Consideration.

A conveyance made to an adopted daughter in consideration of companionship, care and services rendered by her as housekeeper and nurse for many years, is based on a valuable consideration sufficient to uphold the grant.

3. Same—Words on conveyance.

A statement in a deed that “ I do give, bequeath and convey,” is sufficient to carry the fee to the grantee; the words “give, bequeath,” are surplusage, and do not affect the validity of the instrument as a conveyance.

8. Same—Description.

A description of the property as the house occupied by the grantor.

p. 649

with a reference to deeds accompanying the conveyance for a more full description, is sufficiently definite.

4. Same—Delivery.

* A delivery of the deed to a third person, to be delivered to the grantee after the death of the grantor, is sufficient to vest the title in the grantee.

Submission of a controversy pursuant to § 1279 of the Code of Civil Procedure.

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 clerk’s office of the county of Westchester, in book 155 ot" 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 seized.

Mary Ann Campbell was born March 18, 1847, and in 1853 she was adopted by Peter Broadfoot and thereafter, and until her intermarriage with James W. Campbell, on the 20th 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 Broadfootdied and thereafter, and until his death, the adopted daughter lived with and cared for him, acting as his housekeepe'r 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, November 24, 1880.

“ This document setteth forth that I, Peter Broadfoot, in my seventy-seventh year, of sound mind and memory, do in consideration of the fact that my 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 Broad-foot, 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 per

p. 650

sonal 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 ir 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 avenue, 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. [l. s.]

“ Witnesses:

“Andrew Milligan, 83 Third avenue, [l. s.]

“State of New York, 1 City and County of New York, j "

“ On this seventh day of December, in the year one thousand eight hundred and eighty, before me personally came Peter Broad-foot, 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.

“ We H. Biblet,

“ Notary Public (No. 1), City and County of New York, Third avenue, corner of Ninth street.”

When this instrument was executed, it, and the deed from Jarvis to Broadfoot, 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 witten executory contract, by which Mary Ann Campbell agreed to sell, and William Morgan agreed to purchase, the premises described in said deeds for $5,000. One hundred dollars of the purchase 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.

James R. Marvin, for pl’ff; G. De Witt Clocke, for def't.

The question submitted is whether the instrument above set forth conveyed the premises in fee simple to Mary Ann

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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 $94.25, 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: 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, and all the real and personal property of every kind and name, to have and tó 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. Delancey, 11 Johns., 365 ; aff'd 13 id., 535; Jackson v. Delancey, 4 Cow., 427 -432; Pond v. Bergh, 10 Paige, 140, 156; Thayer v. Fenton, 22 W. Dig., 85; Scully v. Sanders, 12 J. & S., 89; Wilson v. Boyce, 92 N. S., 320; Prettyman v. Waltson, 34 Ill, 175 ; Bird v. Bird, 40 Me., 398 ; Harmon v. James, 15 Miss., 111 ; Whitney v. Bukman, 13 Cal., 536 ; De Leon v. Higuera, 15 id., 483; Dyne v. Nutley, 14 C. B., 122 ; 1 Dart V. & P., 6th ed., 602; 3 Wash. R. P., 4th ed., 399; 1 Jones Mortg, §§ 65, 66.

The delivery was sufficient to vest the title in the grantea 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 wile, 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 R. 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 last will by which he empowered his executors to “ convey the real estate of which he should die seized.” The executors on the 22d of June, 1854, after the death of Phebe, granted the land described in the deed of November 25, 1839, to one Hathaway, who brought trespass against Gideon R. Payne. •

Concurrence

p. 652

A judgment was recovered by the plaintiff at circuit, and affirmed by the general term, but was reversed by the court of appeals, where it was held that the delivery by Herrendeen to Gideon R. Payne, after the death of the grantor and his wife, vested the title in the defendant.

See also Nottbeck v. Wilks, 4 Abb., 315 ; Grymes v. Hone, 49 N. Y., 17 -22; Hunter v. Hunter, 17 Barb., 25 ; Crain v. Wright, 36 Hun, 74 , aff'd 114 N. Y., 307 ; 23 St. Rep., 245 ; 3 Wash. R. P., 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 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 ; Shepard's Touchstone, 58 and 59 marginal paging; Washburn on Real'Property, vol. 2, 586, marginal paging.

O’Brien, J., concurs.