
    Allison K. Hume, Pl’ff, v. Edward C. Randall et al., Def’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Deed—Construction—Merchantable title.
    A deed to two parties contained the following: “ The parties of the second part shall have an equal and undivided interest in the property conveyed, and shall control and direct said property during their natural life, after the decease of W., one of the parties of the first part. Neither party or both shall have the right to convey away this property by deed or other forms during their lives without the written consent of W., but it may be arranged to dispose of by will by one of the second party who shall survive the other, or by a mutual will as the parties may agree, which shall take efEect after the death of both parties of the second part. After the decease of one of the second party the survivor shall have the rents, products and issues at her use and control, and if either of the parities marry, then the other shall have full control and possess the entire premises herein deeded.” W. died, and the parties of the second part •deeded the property to H., who in turn, entered into a contract to sell it to ¡R. and Y., who refused to complete the sale on the ground that the title was not a merchantable one. Held, that the original grantees did not take an ■absolute fee of the premises, but only a life interest therein with a p< wer to them to dispose of such title by will, either by the survivor of them or jointly, and that the title was not a merchantable one and R. and Y. were not bound to complete the agreement.
    Controversy submitted without action under § 1279 of the Code of Civil Pro.
    
      Frank F. Williams, for pl’ff; Jesse H. Behrends, for def'ts.
   Macomber, J.

The parties to this submission entered into a land contract on the 13th day of February, 1892, by which the plaintiff agreed to sell and the defendants to buy the lands described in the submission, under the terms of payment not necessary to be set forth in detail. By this agreement the plaintiff -contracted to give by warranty deed a good and sufficient title to the lands so sold. At the time named in the contract for the fulfilment of the agreement both parties were ready, the one tendering a warranty deed and the other performance on his part; but the latter objected to the title offered by the plaintiff, and refused to receive the same upon the ground that it was not a good, merchantable title to the land.

The special objection raised to the plaintiff’s title was, that it was not good for the reason that be obtained it by virtue of a deed, which, though containing a covenant of warranty duly executed by one Sarah A. Cornell and one Laura S. Beal, his grantors, properly acknowledged by them, was imperfect because it was derived by them from one William S. Van Duzee and Oral H. Yan Duzee, his wife, by deed recorded February 2, 1883, and that the last named persons did not have an absolute title to, nor power to convey the lands in fee simple. The deed from Yan Duzee and wife to Sarah A. Cornell and Laura S. Beal (the latter the grantors of the plaintiff), purported to convey the lands in question in the usual form so far as the granting clause is concerned, but had in the body of the deed the following: “It is hereby intended and understood that the parties of the second part (Sarah A. Cornell and Laura S. Beal), shall both have an •equal and undivided interest in the property conveyed above, :and said parties shall control and direct said property during their natural life after the decease of William S. Van Duzee, one of •the parties of the first part. If one of the parties of the second part should be taken away by death, the other party shall have the control during her natural life after the time mentioned above, ■but neither party or both shall have the right to convey away this property by deed or other forms during their lives without the written consent of William S. Yan Duzee, one of the parties of the first part, but it may be arranged to dispose of by will by one of the second party who shall survive the other, or by a mutual will,, as the parties may agree, which will shall take effect after the death of both parpes of the second part mentioned above. Said Van Duzee shall have the full control of said property and its products during bis natural life, but the products, interest and issues of said property shall go for the benefit of the parties of the second part. It being understood that said products, interest and issues shall be equally divided between the parties of the second part, but after the decease of one of the second party, the survivor shall have said rents, products and issues at her use and control. And it is further stipulated that if either of the parties marry mentioned above, then the other party shall have full control and possess the entire premises herein deeded.”

William S. Van Duzee and Oral H. Van Duzee are both dead. Sarah A. Cornell and Laura S. Beal are both still living; this latter fact does not appear in the printed submission, but it was so stipulated by counsel at the time of the argument.

We are of the opinion that, under the foregoing provision or condition in the deed, the grantees, Sarah A. Cornell and Laura S. Beal, did not take an absolute fee of the premises, but only a life interest therein, with a power to them to dispose of such title by will, either by the survivor of them, or jointly. If this be so, it follows, as a matter of course, that their title is not a merchantable one, and that the defendants are not, upon that ground alone, bound to fulfil their part of the agreement The true construction of this deed, it seems to us, is that the grantor should, during his lifetime, manage the land and receive the rents and profits thereof, not to his own use, but for the use of the grantees. There did not exist in the “grantees a right to the profits and income of the real estate, except in this way, which was, in some sort, a trust created by the grantor himself. The case does not come under § 85, art. 3, title 2, chap. 1, part 2 of the Bevised Statutes, whereby any power of disposition shall be deemed absolute, by means of which the grantee is enabled, during his lifetime, to dispose of the entire fee for his own use and benefit. The grantees did not possess this right or power. Indeed, they were, in terms, expressly forbidden so to dispose of it. As was said by the court in Cutting v. Cutting, 86 N. Y., 522, “the revisers say that, in reason and sense, there is no distinction between, the absolute power of disposition and the absolute ownership, and that it is an affront to common sense to say that a man has n» property in that which he may sell when he chooses, and dispose' of the proceeds at his pleasure.”

The terms of the statute in defining an absolute fee do not include a power to appoint by will. It is manifest that a power to devise real estate at the end of the life estate does not bring with it a fee in the life tenant which may be disposed of by deed; such a title alone grows out of a right or power by which the grantee: is enabled in his lifetime to dispose of the entire fee for his own benefit.

By the terms of the deed in this case this was affirmatively prohibited. See also, Crooke v. County of Kings, 97 N. Y., 421; Genet v. Hunt, 113 id., 158; 22 St. Rep., 774.

We are of the opinion therefore, that the deed of William S. Yan Duzee and wife to Sarah A. Cornell and Laura S. Beal did not vest in the grantees the absolute fee of the premises described •after the death of Yan Duzee and wife, so that the warranty deed •of said Cornell and Beal to the said Allison K Hume, the plaintiff, did not convey to him an absolute fee of the premises.

It follows, therefore, that the defendants are not obliged to complete their purchase of the premises, or accept the deed tendered. ^

Judgment ordered for the defendants on' the submission.

Dwight, P. J., and Lewis, J., concur.  