
    Albany Exchange Savings Bank, Respondent, v. William C. Brass and Others, Appellants, Impleaded with Lewis Stahl and Others.
    
      Trustees deed-^- effective, although the power be not recited-.-a life beneficiary may purchase—a mortgagee not affected by the fact that the consideration recited in the deed was not paid, nor with notice of matter in recorded conveyances not affecting-the land in question—delay in recording a deed.
    
    Where a trust deed gives the trustee, who had no interest in the premises described therein except such as he derived under the trust deed, power to sell the premises, a conveyance of the trust property executed by the trustee as such, will, under section 155 of the Real Property Law (Laws of 1896, chap." 547), be deemed a valid execution of the power, although the power be not. recited or referred to therein.
    
      A person having a life interest in the trust property under the trust deed is not precluded from purchasing the remainder in fee.
    The validity of a mortgage on the premises executed by one of the cestuis que trustent who, by conveyances from the trustee and others, had acquired an apparently good title to the property and was then in possession thereof, is not .affected by the fact that the consideration for certain of the deeds executed by the trustee was not paid, where it appears that such deeds recited payment of an adequate consideration and contained nothing which would lead an honest man, using ordinary caution, to make inquiry.
    The fact that one of the deeds in the chain of title remained unrecorded for thirteen years after its execution, is not of itself a circumstance sufficient to put the mortgagee upon inquiry.
    
      Semble, that the mortgagee is not chargeable with notice of matters contained in conveyances not relating to the mortgaged property even though such conveyances were recorded.
    Appeal by the defendants, William C. Brass and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 4th day of October, 1899, upon the reports of a referee.
    The action is brought by the plaintiff to foreclose two mortgages given by Anna Stahl and Lewis Stahl, her husband, on premises in Albany, N. Y., known as No. 538 Broadway.
    On the 5th day of July, 1838, Gertrude Treat was the owner in fee of the lands in controversy in this action. At that time she had one son, Richard J. Treat. Her only other child, Eliza Treat, had married John W. Bay, and was then dead, having left three children her surviving — Richard S. Bay, Anna Bay and William A. Bay. On that day, July 5, 1838, she executed and delivered to John W. Bay, the husband of her deceased daughter, a deed conveying substantially all her property. This deed is a trust deed with power, among other things, to grant, sell and convey all or any of the real estate, and out of the proceeds to pay, among other things, the debts of the grantor, or debts which she may owe at her death, and to apply the whole or so much as she may demand of the principal of such sales, and the whole or as much as she may demand of the rents, income and profits of the real and personal estate to her during her life, and to keep the proceeds of real estate so sold invested, and out of the rents, income and profits to apply the sum of $500 annually to the use of her son Richard J. Treat during his life, and to apply so much of the balance as may be necessary to the education, support and maintenance of her three grandchildren, and the balance of the rents, income and profits to be applied by the party of the second part to his own use and benefit for and during his natural life; and after the death of said party of the second part, then to have and to hold the said property to said three grandchildren, their heirs, executors, administrators and assigns in equal shares forever, with a further power to said party of the second part on certain contingencies to secure the income of one-thir.d’to any one of said grandchildren, if living, with the remainder to said grandchildren’s children, if any; if not, to other grandchildren.
    Gertrude Treat died in 1839 and her son Richard J. Treat died unmarried in 1839, about two months after his mother’s death. On the 27th day of November, 1838, John W. Bay, th¿ grantee in the trust deed, released, transferred and reconveyed the property . therein described to said Gertrude Treat, reciting in such conveyance that he so conveyed, “ So far as the. said party of the first part can release the same from all trusts, liens and incumbrances whatsoever created by the aforesaid deed and in this conveyance there is a covenant that the grantor has not sold or incumbered any part of the property so conveyed to him. For the stated consideration of $10,000, Richard J. Treat, a few days prior to his death, and on the 16th day of April, 1839, and after the death of said Gertrude Treat, executed a release and quitclaim to John W. Bay, in trust for the iufant children of said John W. Bay, of all his right, title and interest iu and to the trust property mentioned in said trust deed from Gertrude Treat, with certain exceptions not material in this controversy, to have and to hold the said released premises and estate in trust for the sole use and benefit and behoof of the said infant children, their heirs and assigns forever.
    For the stated consideration of $5,000, Richard S, Bay, on the 29tli day of March, 1851, gave to Anna Bay a deed of all his right, title and interest in and to certain property, including the premises in controversy.
    For the consideration stated as one dollar, and other valuable considerations, Anna Bay, on the 14th day of September, 1852, : gave to William A. Bay a deed of all the estate, right, title and interest which was conveyed to her by Richard S. Bay by the deed of March 29, 1851, and also her right, title and interest in other property.
    On the 15th day of September, 1852, the day preceding the marriage of said Anna Bay to one Charles W. Brass, she gave to William Bay, her grandfather, the father of John W. Bay, the grantee, in the trust deed from Gertrude" Treat, a deed of all her estate, right, title and interest' in several pieces of land, including the premises in controversy, in trust (1) to receive the rents and profits thereof, and of so much thereof as shall from time to time remain unsold by virtue of the power therein contained and apply the same & the use of the grantor during her natural life; (2) on the death of the grantor “ in case she shall leave descendants living at the time of her death to allow such descendants from and after her said death to take the actual possession of said lands * * * and receive the rents and profits thereof to their own nse as actual owners of the said lands * * * in fee simple absolute to them, their heirs and assigns forever in the like proportion among the said descendants in which they would have inherited the same from the said party of the. first part if she had died seized in fee of the said lands * * * and intestate,” ■ etc. “ And it is hereby declared to be the true intent and meaning of this indenture that from and after the death of the said party of the first part the said party of the second part shall have no estate or title whatever in the said lands, * * * but that from and after that time the same, and the proceeds of so much thereof as may have been sold and reinvested, or so much of the same and of such proceeds as then remain belonging to the said 'party of the second (part), shall belong in fee simple absolute to the descendants of the said party of the first part in the proportion among themselves in which they would inherit from her, if any such be living.” The deed also conferred upon the trustee power to sell any of the trust property, or so much thereof as shall be necessary for that purpose, and out of the proceeds of such sale or sales to pay existing debts; and he was also authorized and empowered to sell or mortgage and apply the avails of such sales of the moneys raised by such mortgages towards the discharge of any incumbrances.
    And he was also “Authorized and empowered, in his discretion, and if he shall deem it proper so to do from time to time during the lifetime of the said party of the first part, to- sell any portion or portions of the said lands * * * and to invest the proceeds of such sale dr sales in any manner that he may think best ; the said proceeds when so invested to be held upon the same trusts herein-above mentioned, with power to resell and reinvest'the said proceeds and the-proceeds thereof as often as to the said party of the second part shall seem expedient and proper.”
    For the stated consideration of one dollar, William A. Bay, on.the 12th day of April, 1860, conveyed to William Bay, trustee for Mrs. Anna Brass, his successors and assigns, the premises in controversy.
    At least nine other deeds relating to the property contained in the Treat trust deed were executed by and between the members of the Bay family, or some of them, from the years 1851 to 1860, inclusive, none of which included the property in controversy.
    For the stated consideration of $12,000, the receipt whereof is thereby acknowledged, William Bay, as trustee for Mrs. Anna Brass, on the. 15th day of September, 1860, conveyed by warranty deed to John W. Bay the premises in controversy.
    For the stated consideration of $20,000, the receipt whereof is thereby acknowledged, William Bay, on the 29th day of August, 1863, conveyed to Anna Brass all the lands and property which was conveyed to him by said trust deed of September 15, 1852, which had not theretofore been sold, disposed of or conveyed. This conveyance recites, among other things, the conveyance of September 15, 1852; the marriage of Anna Bay with Charles W. Brass ; the death of the said Charles W. Brass, leaving the said Anna Brass a widow, having three infant children the issue of' said marriage; the power of sale contained in said trust deed; the receipt of the $20,000 consideration, and then quitclaims to the’ said Anna Brass the premises described in detail, including the premises in controversy. Charles W. Brass died on the 19th day of April, 1863, and Anna Brass married Lewis Stahl on the 21st day of August, 1865.
    For the stated consideration of one dollar, John W. Bay, on the 2d day of June, 1873, conveyed by quitclaim deed, to Anna Stahl the premises in controversy.
    All of the deeds mentioned were recorded in the clerk’s office of Albany county within a few weeks after their dates, respectively, except the deed from William Bay, trustee of Anna Brass, to John W. Bay, dated September 15,1860, which was not recorded until the 16th day of January, 1873.
    On the 17th day of July, 1873, the plaintiff loaned to said Anna Stahl the sum of $5,000, and on the 8th day of October, 1875, the plaintiff loaned said Anna Stahl the further sum of $3,000.
    These loans were made on bond and mortgage in the usual form, executed by Anna Stahl and Lewis Stahl, her husband, to the plaintiff concurrent with the making of said loans respectively, and each of said mortgages covered the premises in controversy and were recorded in the clerk’s office of the county of Albany on or about the day of the making- of said loans respectively. John W. Bay, grantee in the trust deed from Gertrude Treat, died in December, 1877. The said Anna Stahl, formerly Anna Brass and Anna Bay, died on the 20th day of April, 1892. The defendants William C. Brass, Emelie B. Trowbridge and Richard W. Brass are the only heirs at law of the said Anna Stahl.
    The defendants claim that the consideration recited in the deed from William Bay, as trustee for Mrs. Anna Brass, to John W. Bay, dated September 15, 1860, and the consideration recited in the deed from William Bay to Anna Brass, dated the 29th day of August, 1863, was never in fact paid, and evidence was offered tending to establish such contention.
    
      Richard W. Brass, Pierre E. Du Bois and Edwin Countryman, for the appellants.
    
      A. V. De Witt and William L. Learned, for the respondent.
   Chase, J.:

We assume for the purposes of this opinion that the trusts created by the deed from Gertrude Treat to John W. Bay of July 5, 1838, were never legally released or abandoned. Under that deed title to the property described therein was vested in the grandchildren of Gertrude Treat subject to the trusts in and by said deed created and also subject to being entirely defeated by the exercise by John W. Bay of the power of sale contained in said trust deed. The defendants in this action were not parties to that trust deed and John W. Bay was not a trustee for them. All of the parties to this action assume that Richard S. Bay and William A. Bay, as well as Anna Bay, had a right to sell and convey their respective reversionary interests in the property in said trust deed described. John W, Bay died in 1877 without having exercised the power of sale contained in that deed. The trusts therein created having ended, title to the several pieces of property in .said trust deed described now vests in the legal grantees of the grandchildren of said Gertrude Treat. We assume for the purposes of this opinion that the appellants are right in their contention that William Bay, by virtue of the trust deed from Anna Bay, dated September 15, 1852, and by virtue of the conveyance to him by William A. Bay, dated April 12, 1860, became the owner as such trustee of' the whole remainder in fee of the property in controversy. The trust deed to William Bay gave to him not only power to sell for certain express purposes named in the trust deed but also full power to sell the lands and premises therein described and to invest the proceeds thereof as he might think best. That trust deed expressly directed the trustee to invest and reinvest the same from time to time as he should deem expedient and, proper. •“ An instrument executed by the grantee of a power, conveying an estate or creating a charge, which he would have no right to convey or create except by virtue of - the power, shall be deemed a valid execution of the power, although the power be not recited or referred to therein.”. (Real Prop. Law [Laws of 1896, chap. 547],. § 155.)

On the 15th day of September, 1860, William Bay, trustee for Mrs. Anna Brass, conveyed to John W. Bay the premises in controversy by warranty deed in which deed is a recital that it is given in consideration of $12,000, the receipt whereof is thereby confessed and acknowledged by the grantor. On the 2d day of June, 1873, John W. Bay by quitclaim ‘deed conveyed the premises in contror versy to Anna Stahl. The fact that Anna Stahl had a life interest in the property by virtue of the trust deed to William Bay did not prohibit her from purchasing the remainder. “If one buys the remainder he becomes entitled to it and there never was any reason why cestui que trust should not purchase the remainder, thereby becoming entitled to it if he saw fit. If he did purchase it he became entitled to it just as much as though it had been devised to him or it had- descended to him as an heir- at law.” (Mills v. Mills, 50 App. Div. 227.) There is no proof whatever that the plaintiff had any knowledge of the alleged violation of the William Bay trust except so far as the same appears, if at all, by the conveyances received in evidence. There is no evidence, whatever that plaintiff ever saw any of these conveyances. If counsel for plaintiff saw the deeds of record which were received in evidence other than those ' relating to the property in controversy the plaintiff is not bound thereby.

In Bradley v. Walker (138 N. Y. 291) the Court of Appeals held that there was no presumption that an agreement relating to the matter in controversy had come to the notice of the person affected thereby from the simple fact that it was actually recorded when the acknowledgment thereof was insufficient to entitle it to record, and the court say: There is no claim that he had actual notice and no claim that he actually knew of the instrument on record, in the register’s office. But it is claimed that he had notice because his counsel had searched the records. It would be going a great way to hold that we must presume that in searching the records, counsel found such an agreement, and then presume further that he communicated the information to his client.” Plaintiff had constructive notice only of what appeared by the conveyances relat- . ing to the property in controversy. As already stated, appellants contend that William Bay, as trustee for Anna Bay, after the deed ■ to him of April 12,1860, was the owner of the premises in question subject to being defeated by the exercise of the power of sale by John W. Bay under the Treat trust deed. The only deeds since that time relating to the property in controversy are, the deed from William Bay, as trustee for Anna Bay, to John W. Bay of September 15, 1860 ; the deed from John W. Bay to Anna Stahl of June 2, 1873, and the deed from William Bay, as trustee for Anna Bay, to Anna Brass of August 29,1863. These deeds apparently gave to Anna Bay Stahl a good title to the property in controversy. We do not see anything in - these deeds that would necessarily lead an honest man using ordinary caution to make inquiry. There is no proof whatever that the consideration named in the deeds from William Bay are not in each case full and adequate. There is nothing, in either of those deeds to suggest that the consideration was not paid as the grantor in each of the deeds confessed and acknowledged, and there was no reference in either of these" deeds to any other deeds or instruments that required further examination. Anna Stahl was in possession of the property at the time the loan was applied for, and the simple fact that the deed' from William Bay, trustee, to John W. Bay had remained unrecorded for a long time is not, apart from other circumstances, of itself a circumstance requiring the plaintiff to make inquiry as to other matters relating thereto, especially as Anna Stahl had a further quitclaim deed of the property from William Bay that recites a consideration that, so far as appears, was full and adequate. The rule applicable to cases of this kind is stated by the Court of Appeals in Kirsch v. Tozier (143 N. Y. 397) as follows: “ What circumstances will amount to constructive notice or will put a party upon inquiry is in many cases a question of much "difficulty. A purchaser is" not required to use the utmost circumspection. He is. bound to act as an ordinarily prudent and careful man would do under the circumstances. He cannot, act in contravention to the dictates of reasonable prudence or refuse to inquire when the propriety of inquiry is naturally suggested by circumstances known to him,” Applying the rule" so laid down to this case, we are of the opinion that, so far as this particular piece of property is concerned, plaintiff is protected, and the judgment of the .court below should be affirmed, with costs.

Parker, P. J., and Smith, J., concurred in result; Edwards, J., not sitting.

Judgment unanimously affirmed, with costs.  