
    Harty v. Doyle et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    July, 1888.)
    1. Deed—Construction—Repugnant Provisions—Powers.
    A father quitclaimed to Ms daughter, to whom he was indebted to the amount of the expressed consideration, premises upon which they together resided, the deed providing that the father reserved the power to alienate or mortgage the premises during his life-time, and declaring the intention to he to convey “the remainder” of the premises, provided the father failed to execute the power. The habendum was to have, etc., forever, subject to the power. Held, that the purpose of the conveyance was to pay or secure the debt, and that the power reserved was subject to the daughter’s interest, and that the daughter was to have the entire premises in case of the non-executibn'of the power.
    S3. Powers—Reservation" in Deed—Fraudulent Execution.
    A quitclaim by the f athér to one, who quitclaimed to another, who quitclaimed to the father, the three 'déíeds being executed the same day, without consideration, for the purpose of defeating the daughter’s interest, is fraudulent as to the daughter, andi's not a valid execution of the power.
    Appeal from special ¡teijn, Onondaga county
    Action by Edward F. Harty against Alice E. Doyle and others for the partition of lands of which plaintiff alleges Timothy Harty died seised.
    On August 1, 1882, for the recited consideration of $1,735, Timothy Harty .conveyed to his daughter, defendant Alice C. Doyle, by quitclaim deed, which was recorded, a house and lot. Following the description of the property in the deed, there was'the following provision: “But the party of the first part reserves the right, and has the power, to alienate or mortgage the above-described premises, pr any part or any portion thereof, during his life-time; it being the intention of the parties hereto to convey to the party of the second part the remainder of the property herein described, provided the party „of the first part fails to .execute the within power.” The habendum clause, in the form usual in quitclaim deeds, followed, concluding as follows: “To have and to hold tlie said premises to the said party of the second part, her Jieirs and assigns, to the sole and only proper benefit and behoof of the said party of the second part, her heirs and assigns, forever, subject to the reservation and power herein named.”
    The court found that .the'expressed consideration represented a debt owing ¡by the grantor tó the grantee. At the date of the deed, and until the grantor’s death, intestate, "in 1886, the parties resided together on the lot conveyed. Harty quitclaimed the premises to George W. Driscoll, who quitclaimed them. to Robert E. Drake, and Drake quitclaimed the same to said Timothy Harty. The three conveyances were made the same day, (October 9, 1883,) and the deeds were recorded October 10, 1883. The court found that there was no consideration for either of the three deeds. Timothy Harty left five children, plaintiff being one.
    Alice 0. Doyle alone answered, alleging that she was sole owner of the premises under the deed to her. The court held that the deed to Mrs. Doyle created a valid power, which was well executed, and that Timothy Harty died seised of the premises. Alice C. Doyle appeals.
    Argued before Hardin, P. J., and Follett and Martin, JJ.
    
      Jay B. Kline, for appellant. M. B. Driscoll, for respondent.
   Follett, J.

It is difficult to reconcile the granting part of the deed, which is absolute in its terms, and the provision quoted, and ascertain the extent of the interest or power, if any, actually reserved. Before any effect can be given to these ambiguous sentences the intent of the parties must be ascertained, which may be searched for in the words of the instrument, in the relation of the parties, and in the circumstances of the transaction. The granting part of the deed is absolute in terms. It is conceded that the grantor at the date of the deed was indebted to the grantee in the recited consideration, —$1,735. The grantor was the father of the grantee, and they resided together on the premises. The provision quoted seems wholly repugnant to the grant; but if the intent of the parties can be ascertained, and it is not wholly inconsistent with the grant, it should be given effect.

The first and second sentences of the provision are, in terms, inconsistent. The first sentence reserves to the grantor power to mortgage or convey all or any part of the premises; while the second declares it to be the intent of the parties to convey to the grantee the remainder of the property, provided the grantor failed to execute the above power. What remainder? Ho remainder known to the law then existed or was created by this deed. A remainder necessarily rests on a preceding estate. It is clear that neither the parties nor the draughtsman of the deed understood the legal signification of the word “remainder.” This deed must have been executed for a purpose, which, we think, was to pay or secure the indebtedness of the grantor to the grantee; and by the word “remainder,” that the parties or their draughtsman attempted to describe what would be left of the property after paying this indebtedness; and that the power to mortgage or alienate all or any part of the premises was intended to be subject to the grantee’s interest; but if the power was not exercised, the grantee was to have the entire premises at the death of the grantor. This interpretation of this provision, which, as a whole, is repugnant to the grant, and the two sentences of which are repugnant to each other, saves the provision from condemnation as senseless and void, and seems to carry out what the parties should have and probably did intend to effectuate.

The remaining question is, was the power well executed ? If the deed was executed for the purpose above, declared, the attempt to deprive the grantee of her interest in the premises was a fraud. The power reserved was “to alienate or mortgage.” The premises were not mortgaged, nor were they alienated, within the intent of the parties. To alienate is to divest one’s seif of property or title; to transfer property from one’s self to another. Abb. Law Diet.; Whart. Law Diet.; Worcest. Diet. Timothy Harty did not, by the three deeds of October 9, 1883, divest himself of the premises, nor did lie intend' to; but intended to destroy the interest of his daughter, and vest the entire estate in himself. This was a fraudulent execution of the power, which was void in law and in equity. 2 Sugd. Powers, 180, 181; Lewin, Trusts, (8th Ed.) 616. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur.  