Reynolds v. Strong

Grideon Reynolds and Oelancy Reynolds, his wife, November 5, 1867, received a conveyance from William ■Cory of the lands described in the complaint, consisting of about 125 acres lying in the town of Hector, Schuyler county, for the consideration of $5,000 recited in the conveyance. They took as tenants by the entirety, and the survivor took the whole estate. Bertles v. Nunan, 92 N. Y. 152 ; Bram v. Bram, 20 Wkly. Dig. 519 : Baker v. Stewart, 19 Pac. 904 ; Wurz v. Wurz, 15 N. Y. Supp. 720 ; 27 Abb. N. C. 58 , and notes; O’ Connor v. McMahon, 54 Hun, 66 ; 26 St. Rep. 596 ; Coleman v. Bresnaham, 54 Hun, 619 ; 28 St. Rep. 208 ; Miner v. Brown, 45 St. Rep. 188 ; Zorntlein v. Bram, 100 N. Y. 12 ; Steltz v. Shreck, 128 N. Y. 263 ; 40

And the will also further provided as follows; “(3) After the death of my said wife, Celancy Reynolds, I hereby authorize my said executor to sell and convey all my real estate, and whatever may remain of my personal estate, and out of the funds arising from such sale or sales pay the funeral expenses of my said wife,

I give and bequeath to my daughter, Amanda J. Strong, wife of Lerue P. Strong, and Lydia Tliornas, wife of John E, Thomas, each the sum of $1,700. The above legacies to my daughters is intended to make them equal sharers with my son, William B. Reynolds, to whom I have already given a like amount, and the residue of my estate, if any, after paying the two-legacies to my two daughters as above provided, I give and bequeath to my three children, my two daughters above named, and my son, William B. Reynolds, equally, share and share alike.”

The will named William B. Reynolds as executor, and he received letters testamentary and settled up the estate, and «was discharged by the surrogate upon a final accounting. The testator left no other real estate. The personal property, after the payment of the debts and expenses, amounted to about $1,220, and the possession thereof was delivered to Celancy Reynolds, she executing back to the executor a promissory note conditioned to be paid in the event it was necessary for the payments of his debts, she claiming the property under the will. When the executor settled the estate he had ascertained that it was not necessary that her note should be paid, and he brought it into the settlement, and received credit therefor in his final accounting. Inasmuch as her note had been simply given to protect the executor in case he should be compelled to pay the’ Cory mortgage or any other indebtedness of- the testator, he was credited with the note upon the assumption that he had paid to her the amount there of, as legatee under the will. The final accounting did not take place, however, until after the death of Celancy Reynolds, which occurred on the 1st day of September, 1890. She remained in possession of the personal property thus acquired under the will of her husband, and she remained in possession of the real estate mentioned in the complaint and mentioned in his will, as aforesaid, and continued therein until the time of her death. She left a last will and testament, made and published on the 24th day of September, 1885, which was duly admitted to probate by the surrogate of Schuyler county, and letters testamentary were issued to the plaintiff, her son, who was named therein as the executor. In her will she bequeathed to her daughter Lydia Thomas and to her son, William B. Reynolds, each the one equal one-third part of all her real and personal estate absolutely; and the second paragraph of her will was as follows: ‘'The remaining one-third part of my said estate I give, devise,, and bequeath to my daughter Amanda J. Strong, to be used by her for her use and benefit during her natural life, hereby giving her full power to sell and convey the same, and use it as she may see fit; and, in the event of her dying without a will, that portion which shall remain at her decease, or the proceeds of the same, I hereby give, devise, and bequeath to her five children, viz. Leander Strong, Cory Strong, Lewis P. Strong, Ella Strong, and Lee Strong, or to such ones of said children as shall be living at the decease of said Amanda.” .

The plaintiff, her executor, about the 2d of October, 1890, received letters testamentary from the surrogate, and entered upon the discharge of his duties as such; and on the 14th day of March, 1892, he entered into an agreement with the defendant, his sister, under their hands and seals, for the sale of the farm described in the complaint, and by the terms of the contract so entered into by the parties, the plaintiff agreed to sell the land described in the complaint, consisting of about 125 acres of land, for the sum of $4,375, which she agreed to pay for as follows: “On the 1st day of April, 1892, $2,916.67 in money, $500 by receipt for that amount to apply on her distributive share or legacy under the will of Celancy Reynolds, deceased, and her note for $958.33, with interest from the 1st day of April, 1892, to be collaterally secured by an assignment on her interest in the estate of Celancy Reynolds, deceased."

And he agreed as follows: “On receiving such payment, at the time and in the manner above' mentioned, shall, at his own proper cost and expense, execute and deliver to the said party of the second part, or to her assigns, a good and sufficient executor’s deed of said premises, accompained by a certified search from the clerk of the courtty of Schuyler.”

Indorsed upon that contract is the $500 down payment by way of a receipt mentioned in the contract. It may be observed that the covenants in the contract were mutual and dependent (James v. Burchell, 82 N. Y. 108 ), and that the vendor was obliged to give a good title (Bostwick v. Beach, 31 Hun, 343 ), and that the language used required, not only a deed good in its phraseology and form, but one that transferred a good and sufficient title (Story v. Conger, 36 N. Y. 673 ), and a title that was not merely valid in point of fact, but one that was marketable,—such a one as might be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence as security for the loan of money. Moore v. Williams, 115 N. Y. 586 ; 26 St. Rep. 259 ; Meth. E. Church Home v. Thompson, 108 N. Y. 618 ; 13 St. Rep. 127 ; Haffey v. Lynch, 143 N. Y. 247 ; 62 St. Rep. 171 . The defendant was in possession of the premises at the time the contract was entered into, having had the occupancy from the time of her mother’s death, and claims to occupy as a devisee under her father’s will, subject only to the power of sale given to his executor as a tenant in common with her sister, Lydia B. Thomas, and her brother, William B. Reynolds. Apparently, the defendant in good faith entered into the contract for the purchase of the premises, and sought with " some diligence to perform the requirements of the contract on her part. However, when she sought to raise money upon the premises, of a lender who had given her assurances that he would furnish her money, she was finally refused a loan by the party to

It is insisted in behalf of the appellant that Celancy Reynolds, by receiving the personal property bequeathed to her by the will of Gideon Reynolds, elected to carry out the provisions of her husband’s will, and hence that at the time of ■ her death she had not title to the real estate in question which would pass under her will, and that the power of sale mentioned in her will of the real estate was "inoperative, and therefore that the plaintiff, by tendering a deed, did not offer to the defendant a good title to the property described therein. It appears by the evidence that, before the deed was tendered by the plaintiff to the defendant, the sister, Mrs. Thomas, had instituted proceedings before the surrogate against the executor (the plaintiff), seeking to recover the $1,700 mentioned in her father’s will, and that the plaintiff had notice of such claim, as did also the defendant. A hearing was had before the surrogate, and he finally reached the conclusion to dismiss the proceedings “ upon the ground that it is not proven to the satisfaction of the surrogate that there is money or other personal property of the estate of Gideon Reynolds, deceased, applicable to the payment or satisfaction of the petitioner’s claim, within subdivision 2, § 2817, Code Civ. Proc., and without prejudice to an action or accounting in behalf of the petitioner.” The decision seems to have been made on the 5th day of May, 1892, and about that period the plaintiff and the defendant were advised, in behalf of Mrs. Thomas, that her claim would

In Leonard v. Crommelin, 1 Edw. Ch. 206 , it was held that: “A person shall not claim an interest under an instrument (either deed or will) without giving full effect to the same as far as he can, and renouncing any right which would defeat it. He who makes his election is bound to abide by it, unless he can restore the property to its original situation, and the taking possession binds the performance, although there be a loss.”

In Caulfield v. Sullivan, 85 N. Y. 159 , it was said, viz. : “ By accepting the provisions made for her, she assented to all the terms and conditions annexed to it, and yielded every right inconsistent with such terms and conditions. One who accepts of a devise or bequest does so on condition of conforming with the will. Ho one is allowed to disappoint a will under which he takes a benefit, and every one claiming under a will is bound to give full effect to the legal dispositions thereof, so far as he can, Chamberlain v. Chamberlain, 43 N. Y. 424 ; and, where one is thus put to his election under a will, it matters not that what he takes turns out to be greater or less in value than that which he surrenders. Brown v. Knapp, 79 N. Y. 136 .”

The same doctrine was stated in Lee v. Tower, 124 N. Y. 375 ; 36 St. Rep. 344 , in the following language: “Ho one can be allowed to disappoint a will under which a benefit is accepted, but, on the contrary, must concede full effect to the dispositions thereof.”

' Appellant calls attention to Worthington v. Wiginton, 20 Beav. 67, and 6 Am. & Eng. Enc. Law, 251, and other cases in harmony with those from which quotations have already been made. On the other hand, it is claimed by the respondent that an election was not proven by unequivocal acts; that the presumption is that she did not elect—and it is insisted that, if her acts can be construed, or a meaning given to them, inconsistent with an election, then no election was made; and in support of that contention reference is made to Cox v. Rogers, 77 Pa. St. 160 ; Story, Eq. Jur. §§ 1097, 1098; Pom. Eq. Jur. §§ 514, 515; Spread v. Morgan, 11 H. L. Cas. 588; Marriot v. Badger, 5 Md. 306 , and Whitridge v. Parkhurst, 20 Md. 62 . And it is also insisted by the respondent that Celancy Reynolds did not take possession of the

And in Abbott v. James, 111 N. Y. 673 ; 20 St. Rep. 230 , the case from which the quotation has just been made was approved; and it was an action to compel specific performance, on the part of the defendant (the purchaser), of a contract to purchase certain real estate; and, in the course of the opinion delivered in that •case, Finch, J., observes : “ Yumerous authorities are cited on both sides, and many considerations are advanced not necessary to be repeated. While upon the inquiry involved I have, perhaps, formed some decided opinion, I am obliged to admit that the question is doubtful and debatable, and justified the differences of -opinion which have risén among us. Those differences have not been wholly founded upon questions of law, but have rested somewhat upon the uncertain and undisclosed character of the facts; for, while they are settled in this case by the complaint and demurrer, the heirs may show them to be entirely different, and will be at liberty to .do so if they can. * * * In such an emergency we must remember that, if we force this title upon the purchaser, he may have to confront the heirs at law in a future litigation. They are not before us, and will not be bound by our decision. They will have a right to be heard, both as to the facts and the law ; and, since the question is doubtful and quite evenly poised, we think we ought not to expose the purchaser to the possible risks of the situation. We have therefore briefly stated the question sufficiently to disclose its general character, and without any argument upon it, which would be improper in view of our -conclusion.”

With due deference to the cases from which the quotations have been made, we are led to the conclusion that the question of election ought not to be passed upon in such a way as to compel the ■defendant to accept the title tendered by the deed of the plaintiff, and that if such a conclusion were to be asserted in this action it would not bind Mrs. Thomas, who is not a party to the suit. If the plaintiff had brought this action for specific performance of the contract in question, and had interpleaded Mrs. Thomas, so that all of the questions of fact, as well as of law, could have been authoritatively established, and made binding upon Mrs. Thomas as well as upon this defendant, the questions which the plaintiff has sought to have solved in his favor might been considered and conclusively determined. Bearing in mind, besides the question of election, to which reference has been made, it appeared at the trial of this action that the Cory mortgage remained unsatisfied of record, and that no judgment in the action of foreclosure had been entered, we are of the opinion that the plaintiff did not present a marketable title which the defendant-should be compelled to accept. The defendant would be exposed to litigation. She would have a piece of real estate which her father had at least clouded by his will, and which had on it an apparent lien created by the mortgage executed by her father to Cory. In Jordan v. Poillon, 77 N. Y. 521 , in speaking of a purchaser, the court ob

And in Meth E. Church Home v. Thompson, 108 N. Y. 618 ; 13 St. Rep. 127 , which was an action brought to recover back a payment made upon a contract of purchase, it was said: “ A reasonable doubt as to the vendor’s title, such as to affect the value of the property, and to interfere with a sale thereof to a reasonable purchaser, is sufficient. This rule applies as well in such case as where the vendor sues for specific performance.”

The same doctrine was reasserted in Kilpatrick v. Barron, 125 N. Y. 751 ; 36 St. Rep. 15 . In Moore v. Williams, 115 N. Y. 586 ; 26 St. Rep. 259 , it was held that: “ Where there is a defect in the record title, or an apparent incumbrance upon the premises, and the vendee, in order to defend his title, would be obliged to resort to paroi evidence, he may refuse to complete his. purchase, at least except in extraordinary cases in which it is very clear the purchaser can suffer no harm from the defect or incumbrance.”

In that case there was an outstanding lien, and near the close of the opinion it is said: “ The vendors should be at the expense of clearing the title of this cloud, and it is not just that they should cast that burden upon the vendee, and require him to take an unmarketable title.”

And in Fisher v. Wilcox, 77 Hun, 208 ; 59 St. Rep. 764 , it was. held, viz.: “ When the validity to the title of real estate is doubtful, the court ought not to determine the question, and compel an acceptance of the title, in the absence of, and without hearing, all parties whose rights depend on tfie decision of the same.”

McPherson v. Smith, 49 Hun, 255 ; 17 St. Rep. 19 . And in Crouter v. Crouter, 133 N. Y. 55 ; 44 St. Rep. 315 , it was said, near the close of the opinion: “ The defect is also curable if the proper proceedings are taken for that purpose; but the burden of causing the necessary steps to be taken to conclude the defendants in this action cannot be cast upon the purchaser at the same. He has a right to expect and demand a marketable title, and one free from a reasonable doubt as to its validity.”

Vought v. Williams, 120 N. Y. 253 ; 30 St. Rep. 899 . In Moore v. Williams, supra, it was" held, “Although the distinction between good and marketable titles is peculiar to courts of equity, since the union in this state of law and equity in the same courts, an action at law by the vendee to recover back purchase money paid may be based upon the equitable ground for rejecting a title, i. e. that it is not marketable.”

That case seems to be an authority for holding that the defense

Judgment reversed, and a new trial ordered, with costs to abide the event.

All concur.