Woerz v. Radermacher — 6 N.Y. St. Rep. 685

Majority

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Ernst G. W. Woerz, Resp’t, v. Richard W. Radermacher, App’lt.

Supreme Court, General Term, Second Department,

Filed February 15, 1887.)

Headnote

Trust —When created—Deed of trust—Specific performance— Title.

The plaintiff signed and recorded an instrument in relation to certain land here in question, which recited: “Now, therefore, know all men by these presents, that the said conveyance, so made as aforesaid, was made for the joint benefit and advantage of myself and of the trustees (naming them), and that they are, and each of them is, equally interested mw my

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self in all the benefits and advantages to be derived therefrom, and are equally liable with myself for all costs, expenses and liabilities attending- or in any way connected with the same. ” Held, it was not the office of the instrument to impress a trust upon the property or to operate as a defeasance to the plaintiff's deed of conveyance.

This is an appeal from a judgment made by Mr. Justice Barnard, at special term, directing a specific performance of a contract for the exchange of .real property. There is no controversy as to any of the facts in this case. The plaintiff is the owner of a gore lot on the south side of Halsey street, 116 feet from Broadway, adjoining the parcel of property owned by the defendant. In the rear of the defendant’s houses he owns a gore lot, and the parties entered into a contract for the exchange of their gore lots, the purpose being to enable each of the parties to straighten his property in full lots. The defendant refused to carry out the contract, on the ground that the plaintiff could not convey a good title to the gore lot agreed by him to be conveyed, the defendant claiming that other persons had an interest or estate in the land. The trial judge has found the following facts with respect to the plaintiff’s title :

Prior to August, 1876, the Abingdon Square Savings Bank became insolvent, and one Prank Thompson was appointed receiver of its property. He commenced actions against the eleven trustees of the bank, of whom the plaintiff was one. On August 28, 1876, these actions were settled by an agreement between the receiver and the trustees, which agreement was executed by all the trustees and by the receiver, and was approved by the court. By its terms the trustees were to pay thirty-five per cent, of the indebtedness of the bank, and the property contracted to be conveyed by the plaintiff to the defendant, together with other real property in the city of Brooklyn, was by the agreement to be conveyed to the trustees, or to a person designated by a majority of them. This thirty-five per cent, was subsequently paid, but not in equal shares, by the several trustees. Some paid more than others, and the trustee Adam Knobloch contributed nothing toward the payment. Knobloch is now dead. The legal title to the property in question was in the name of Louisa Schumacher, wife of Charles A. Schumacher, one of the trustees, but the property belonged to the bank and was conveyed to the plaintiff by the direction of the receiver under the designation of the plaintiff by a majority of the trustees, and in performance of the agreement of August 28, 1876. All these facts are recited in the deed to the plaintiff.

The receiver also made a conveyance of the particular property in question to the plaintiff. That deed recites the agreement of August, 1876, executed by all the trustees, the

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performance by the trustees on their part of all the conditions of the agreement, and the designation by them in. writing of the plaintiff as the person to whom the properly in question should be conveyed. Shortly after the legal title to the property in question had been vested in the plaintiff by the deeds from the receiver, but before Mrs. Schumacher had delivered her deed, the plaintiff signed and recorded an instrument which has been called ‘ ‘ Declaration of Trust.” This instrument recites the agreement between the receiver and the trustees, the designation of the plaintiff by all of the trustees as the person to whom the property in question should be conveyed by the.receiver, and then follows this declaration: “Now, therefore, know all men by these presents, that the said conveyance so made as aforesaid, was made for the joint benefit and advantage of myself and of (the trustees, naming them), and they are and each of them is equally interested with myself in all the benefits and advantages to be derived therefrom, and are equally liable with myself for all costs expenses and liabilities attending or in any way connected with the same.” The defendant claimed that this instrument divested the plaintiff of his legal estate in the land, and created in favor of the persons named in the instrument, an estate equal with the plaintiff.

Philip L. Balz, Jr., for app’lt; Edwin C. Shaffer, of counsel; Guggenheimer & Utermyer, for resp’t.

It is the object of this action to compel the specific performance of a written contract for the exchange of real estate.

The defendant alleges the imperfection of the title of the plaintiff to the premises he proposes to convey in consummation of the contract, but there seems to be no substantial foundation to his objection.

There never has been any dispute respecting the location of the legal title to the property which the plaintiff proposes to convey, but the contention of the defendant is that the plaintiff divested himself of the fee by the execution of the paper called the declaration of trust, dated July 15» 1878. But the apprehension of the defendant is entirely unwarranted. That instrument so executed by the defendant three days after he become vested with the fee declared certain other persons to be equally interested with the defendant in all the benefits and advantages to be derived from the conveyance of the property to him.

It was not the office of that instrument to impress a trust upon the property or to operate as a defeasance to the plaintiff’s deed of conveyance. Its legal effect was to admit the persons designated to equality with the plaintiff in the

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benefits derived from the conveyance upon the theory of its absolute and indefeasible character.

The character and sufficiency of the plaintiff’s title being the only question involved in this appeal it does not require further pursuit or examination.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.