
    Title Guarantee and Trust Company, Respondent, v. John Fallon and Others, Defendants. Bernhard Klepper, Appellant.
    
      Deed to “William J. Curtis, trustee,” Ms heirs and assigns — a conveyance by “William J. Curtis, trustee,” is effectual to pass the title—defect in titles—when it must be established by a purchaser refusing to accept it — a recital that land is subject to restrictions—when innocuous.
    
    Where a conveyance is made to “ William J. Curtis, trustee,” and to his heirs and assigns forever, the word “ trustee” is deseriptiopersonas and a conveyance executed by, the said “William J. Curtis, trustee,” issufflcient to pass the title. If a defect in the title to a parcel of real property is patent in the record, á purchaser of the property at a judicial sale, who refuses to complete his purchase, may rest on such defect, otherwise, he must give evidence in justification of his refusal.
    A recital in a deed that the land is conveyed “subject, however, to the, restrictions contained in Section 14 of Title 16 Of Chapter 583 of the Laws of 1888, as amended by Chapter 703 of the Laws of 1897,” does not, where the statute referred to therein does not affect the premises conveyed, operate to extend the scope of the statute and subject the premises conveyed to the restrictions created thereby.
    Appeal by Bernhard Klepper, the purchaser at a foreclosure sale, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 13th day of September, 1904, denying the appellant’s motion to be relieved from his purchase at such sale. x
    
      
      Frank Walling [Siegmund Rosenthal, with him on the brief], for-the appellant.
    
      Edwin Kempton, for the respondent.
   Jenks, J.:

This is an appeal by a purchaser at foreclosure from an order denying his motion for relief from his purchase. It appears that the property was once conveyed to “ William J. Curtis, trustee,” and Was conveyed by “ William J. Curtis, trustee,” to the defendant John Fallon' in this foreclosure. It further appears that the said conveyance, from “ William J. Curtis, trustee,” to the said defendant was made “subject, however, to the restrictions contained in Section 14 of Title 16 of Chapter 583 of the Laws of 1888, as amended by Chapter 702 of the Laws of 1897.” It was objected that there was no evidence that the trust under .which Curtis took the property was one authorized by the laws of the State of New. York, and that the deed from Curtis, trustee, to the said, defendant contains ho evidence of the authority of the said Curtis to convey as trustee, nor was there any record thereof, or of said trusteeship. It was further objected that the property was conveyed by Curtis to the said defendant under certain restrictions, as I have indicated, while it was sold free and clear save as to 'certain assessments as to which no objection is made.

1 think that the motion was rightly denied. The facts that beyond the word “ trustee ” there was no evidence to establish any trusteeship; that the term was simply “ trustee” and not “as .trustee,” and that the conveyance to Curtis, trustee, ran to his heirs and assigns forever bring the case within Greenwood Lake & P. J. R. R. Co. v. N. Y. & G. L. R. R. Co. (134 N. Y. 435). . “Trustee” is but' descriptio persanes ; the conveyance. to Curtis, trustee,' Was absolute, arid his power of conveyance was unlimited. (See, too, King v. Townshend, 141 N. Y. 358; Kanenbley, v. Volkenberg, 70 App. Div. 97.)

As to the alleged restrictions, the purchaser rests upon the clause in.the deed, and offers aio evidence whatever. The.assistant solicitor' for the plaintiff deposes that the .laws referred h> imposed no'restrictions upon lots upon the street whereon this lot is • situate, or upon this lot, and that there are no restrictions. anywhere provided for» It is quite apparent that there is not a mistake in the citation of the statute. A reading of the statute itself seems to make it plain that this lot is not within the purview thereof. If a defect is patent in the record of title, the purchaser may rest thereon, otherwise he must give evidence in justification of his refusal. (Goodwin v. Crooks, 58 App. Div. 464; Greenblatt v. Hermann, 144 N. Y. 13, 18; Simon v. Vanderveer, 155 id. 377.) I think it clear that mere reference to the statute as if restrictive, when it is not, cannot effectuate a covenant, thereby giving to the statute a scope beyond the legislative intent. (See Clark v. N. Y. Life Ins. & Trust Co., 64 N. Y. 33; Platt v. Finck, 60 App. Div. 312.) It is suggested that the clause was inserted because the lot at the time was part of a tract through which the streets restricted by the statute ran, and either that the remoteness of that part from those streets was not considered, or the partiés failed to note the streets not restricted, or the clause was left as harmless surplusage.

The order should be affirmed, with ten dollars costs and disbursements.

Hirschberg, P. J., Woodward and Hooker, JJ.,'concurred.

Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.  