
    Dan S. Richards, Resp’t, v. Levi Crocker et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 9, 1892.)
    
    1. Deed—Cottstructiott.
    One S. executed and delivered to his three sons, E. I. and L., a deed which conveyed to each an undivided one-fourth part of his farm, at the same time executing and delivering to L. a deed of the remaining undivided one-fourth of the farm, conveying the same to L., “his heirs and assigns forever,” with all the grantor’s right, title and interest therein, to have and to hold the same unto the grantee “ upon the trusts, nevertheless, and for the uses, interests and purposes hereinafter limited, that is to say,
    
      upon trust to receive the issues, rents and profits of said premises and apply the same to H. during the term of his natural life.” The part constituting the grant was printed, that declaring the uses written. H. was a son of S. Thereafter S. deeded the undivided one-fourth last deeded to L. to plaintiff, ‘"subject to the life interest of H., created by deed of trust to L.” Held, that the purpose of the deed to L. was to convey the premises in trust for H., and that there was no intent to convey to him any other or greater estate.
    2. Real property—Action to recover—Proof of damages for use and
    OCCUPATION WITHOUT AVERMENT.
    In an action to recover the possession of real property, where the complaint demanded judgment for the possession of the property, and a sum as damages for withholding the same, but did not contain any averment of damage, the plaintiff is entitled to prove, and if he recover judgment establishing his title, to recover damages for the use and occupation of the premises in question from the commencement of the action to the time of trial.
    Appeal from a judgment, entered in Broome county May 11, 1892, on the decision of the court, a jury trial having been waived and the action tried by the court without a jury. The judgment awarded to the plaintiff the possession of the premises described in the complaint, $75 damages for the use, occupation and withholding the possession thereof, and $103.40 costs'.
    The action was to recover the possession of certain real estate situated in the town of Union, Broome county, IT. Y., known as the westerly portion of Crocker’s Island, and contained about seventeen and one-third acres of land. Prior to April, 1852, the premises, of which those in question formed a part, were owned and occupied by Samuel Crocker. On the 7th day of April, 1852, he executed and delivered to his three sons, Elias, Eli and Levi, a deed which conveyed to each, an undivided one-fourth part of his farm, which contained about eighty acres of land, including the portion of the island belonging to him.
    At the time of the execution of the deed to his sons, Elias, Eli and Levi, he also executed and delivered to Levi Crocker, one of the defendants in this action, a deed of the remaining undivided one-fourth of his farm, the material provisions of which deed were, “ That the said party of the said first part (Samuel Crocker), for and in consideration of the sum of one hundred dollars, lawful money of the United States, to him in hand paid by the said party of the second part (Levi Crocker), at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents doth grant, bargain, sell, alien, remise, release, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, all that equal undivided fourth part of all that piece or parcel of. land situate in the town of Union (which js therein described by metes and bounds), the said party of the first part hereby reserving to himself, during his natural life, the use of two square rooms of the first story, consisting of kitchen and bed-room, the privilege of the cellar, and of cutting necessary fuel on the above premises, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim and -demand whatsoever, as well in law as in equity, of the said party of the first part, of, in or to the above described premises, and every part and parcel-thereof, with the appurtenances, to have and to hold, all and singular, the said hereinbefore granted and desci'ibed premises, with th% appurtenances, unto the said Levi Crocker, upon the trusts, nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared, that is to say, upon trust to receive the. issues, rents and profits of the said premises, by leasing or otherwise, and apply the same to the use0of Hiram Crocker, during the term of his natural life, as follows: First, the said Levi Crocker shall pay. the annual .annuity to the party of the first part, during the term of his natural life, according to the requirements and conditions-of a certain bond and mortgage, this .day executed, by the said Hiram Crocker, to the pai'ty of the fil-st part; secondly pay the one-fourth part of a certain bond and mortgage, executed this day by Levi Crocker, Elias Crocker, Eli Crocker and Hiram Crockerpthe said rents, issues and profits of.the said premises, or so much thereof "as shall be necessary, shall be applied to the use and benefit of the said Hifazn Crocker, as aforesaid, and-for his use and benefit, during the term of bis natural life.” At the same time, a bond and.mortgage was executed by Eli, Levi, Elias and Hiram Crocker to their" sisters, to secure the payment to them of the sum of $800, and also a bond and mortgage to Samuel Crocker, executed by Eli, Elias, Levi and Hiram, to secure to Samuel the .payment of an annuity from each of $35.71, for and during the term of his natuz-al life. . °
    About one year after -.the execution and delivery of the deeds already mentioned, and on the 12th and 13th of May, 1853, a jiar-tition deed was executed by Elias Crocker and wife, Eli Crocker and wife, Levi Crocker and wife, Samuel Crocker and Hiram Crocker, by which the farm in question was partitioned between the,parties By such .partition, the portion of the premises described in the complaint was set off to Levi Crocker, as trustee for Hiram, to be held by him .for the uses and purposes set forth in the foregoing deed.
    Subsequently, and on the 10th day of October, 1855, in consideration of $150, that day paid' him by the plaintiff, Samuel Crocker executed, acknowledged and delivered to the plaintiff.a deed or instrument in writing, under seal, of’which the following is a copy:
    “ Know all men by these presents, that I, Samuel Crockei’, of the town of Union, Broome county, Hew York, have bargained and sold, and by this instrument do convey unto Dan S. Bichareis, of the said town, and to his heirs and assigns forever, in consideration of the sum of $150, to me in hand paid, the receipt whereof is hereby acknowledged, all that certain piece or parcel of land, commonly called the ‘ Crocker Island,’ situate in the Susquehanna river, in the said town of Union, and which is nearly opposite lot Ho. 218 in the Chenango township of the Boston purchase, and also nearly opposite the Choconnt Creek which runs into said river, through the lands of Jesse Richards from the north ; excepting from this conveyance, however, about three or four acres from off the upper end of said island, now owned by Benjamin Chambers.
    “ This conveyance is made subject to the life interest of Hiram Crocker in said island, which was created by a deed of trust to Levi Crocker, of date about April 8,1852, which deed is recorded in Broome county clerk’s office, in book of deeds Ho. 37, page 431, and as recreated or modified by a partition deed by Samuel Crocker, Hiram Crocker, Levi Crocker, Eli Crocker and Elias Crocker, which is recorded in Broome county book of deeds Ho. 40, page 258, by which deed the property held in trust by Levi for Hiram was partitioned off and shifted from that mentioned in the deed of April, 1852, to the island herein mentioned, which then became and now is the property which Levi holds in trust for Hiram, with a remainder over to me. This deed is intended to convey my remainder and the fee to said island, subject only to said Hiram’s life interest.”
    Ho consideration appears to have been given for the deeds from Samuel to his sons, Levi, Elias and Eli, and to Levi as trustee for Hiram, except the payment of the annuity and debt mentioned in the two mortgages given, one to Samuel Crocker and the other to his daughters.
    Hiram Crocker died in the month of February, 1890. This action was commenced on the 17th of April, 1890. In the month of April, 1890, the defendants were in the possession of that portion of the island which is described in the deed to the plaintiff, except a portion acquired by the Hew York, Lackawanna & Western Railroad Company. Before the commencement of this action, and in said month of April, the plaintiff demanded possession of the premises of the defendants, which was refused, and the plaintiff was excluded from the possession thereof and his right therein denied, the defendants claiming that the defendant Crocker was the owner in fee and the defendant Robinson his tenant. The value of the use and occupation of the premises claimed by the plaintiff which the defendants withhold from him, from the commencement of the action to the time of the trial, was seventy-five dollars.
    
      Millard & Stewart, for app’lts; D. S. & R. B. Richards, for resp’t.
   Martin, J.

A deed by Samuel Crocker to Levi Crocker of one-fourth of his farm in trust to receive the rents and profits of the land and apply them to the use of Hiram during his life would have been valid. (R. S., part 2, chap. 1, title 2, art 2, § 55.) If such was the character of the deed given, then Levi held the premises as a trustee of a valid express trust, and the title to the premises vested in him, and not in Hiram; but Samuel still possessed the right to grant or devise the land, subject to the execution of the trust. (Secs. 60, 61.) When the purposes for which the trust was created ceased the estate of the trustee ceased, and the estate conveyed to the trustee and not granted by him reverted to the grantor, his heirs, devisees, or those claiming under him, to the same effect as though such trust had not been created. (Sec. 67.)

If, therefore, the deed from Samuel to Levi conveyed the premises to the latter in trust to receive the rents and profits thereof and apply them to the use of Hiram during his life, upon the termination, by the death of Hiram, of the purpose for which the trust was created, the estate in Levi ceased and the title reverted to the plaintiff as the grantor of Samuel Crocker. Whether the deed from Samuel to Levi conveyed to the latter the premises in trust to receive the rents and profits thereof and apply them to the use of Hiram during the term of his natural life, or whether it conveyed to him (Levi) the absolute fee in the premises, is the real question to be determined in this case.

In construing this deed it is our duty to carry into effect the intent of the parties, so far as it can be collected from the whole instrument. Such is the mandate of the statute (R. S., part 2, chap. 1, title 5, § 2), and such the rule which must be applied in this case. Syracuse Savings Bank v. Holden, 105 N. Y., 418 ; 8 St. Rep., 29.

“ The intent, when apparent and not repugnant to any rule of law, will control technical terms, for the intent, and not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with an endeavor to give every part of it meaning and effect.” 2 Devlin on Deeds, § 887; Coleman v. Beach,. 97 N. Y, 545. Where a contract is partly printed and partly in writing, the written matter must prevail over the printed, in case of a conflict between them. Hill v. Miller, 76 N. Y, 32; Clark v. Woodruff, 83 id., 518. If a deed contain a clause clearly showing the intention of the parties, ambiguities and inconsistencies in other clauses will not defeat such intention. Bent v. Rogers, 137 Mass., 192. The circumstances connected with the transaction and the situation of the parties may be considered in arriving at their intent (French v. Carhart, 1 N. Y, 96; Field, v. Munson, 47 id., 221; Bridger v. Pierson, 45 id., 601), and regard must be had to the nature of the instrument itself, the condition of the parties executing it and the objects which they had in view. Clark v. Devoe, 124 N. Y, 120; 35 St. Rep., 206.

By the deed under consideration the grantor conveyed to the grantee, his heirs and assigns forever, an undivided one-fourth of the premises described, with all the grantor’s right, title and interest therein, to have and to hold the same unto the grantee, “ upon the trusts, nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared, that is to say, upon trust to receive the issues, rents and profits of the said premises, by leasing or otherwise, and apply the same to the use of Hiram Crocker during the term of his natural life.” In preparing this deed a printed blank form of deed was used. The portion constituting the grant was printed, while the part declaring the uses and purposes for which it was given was written. The evidence shows also that when this deed was given the grantor was the owner of the whole of the premises described, which contained about eighty acres of land; that he deeded to his three sons, Eli, Levi and Elias, each an undivided one-fourth part thereof; and that his son Hiram was then feeble in intellect or diseased in mind.

The circumstances disclose an intent and purpose on the part of the grantor to make provision for his four sons. For Eli, Levi and Elias, by deeding to each an undivided one-fourth of his farm, subject to the payment to him of a certain annuity and an equal portion of a mortgage thereon. Having thus disposed of three-fourths of the farm equally between the three, he then evidently intended to provide for his more unfortunate .son by transferring the remaining one-fourth to Levi, in trust, to receive the rents and profits and apply them to the use of Hiram, who was incompetent to care for himself, and not to convey to Levi another one-fourth of the premises in fee. That the chief and only purpose of the grantor in conveying the one-fourth transferred to Levi in trust was to devote the rents thereof to the use of Hiram is, we think, quite obvious. We find no sufficient evidence in the deed or elsewhere to justify the conclusion that the grantor either intended to transfer the premises to Levi absolutely in fee, free from any trust in Hiram’s favor, or that he intended that Levi should acquire an absolute title subject to a trust to receive and expend the rents and profits thereof for Hiram’s benefit during his life. Applying to this deed the rules relating to the construction of written instruments to which attention has been called, considering the situation of the parties, the manifest object that the grantor had in view when it was given, giving proper effect to the written portion, and considering all its provisions, we are led irresistably to the conclusion that the purpose and intent of the deed was to convey to Levi a one-fourth part of the premises in trust to receive the rents thereof and use them for the henefit of Hiram, during his life, and that there was no intent to convey to him any other or greater estate therein.

The mere fact that the clause in the deed showing that it was intended as a deed in trust for the purposes mentioned was in the habendum clause, was not, we think, material in determining the intent. Phænix Ins. Co. v. Continental Ins. Co., 87 N. Y., 401.

We are, therefore, of the opinion that the conveyance to the defendant Levi Crocker in trust for the use of Hiram passed to Levi as such trustee an estate in the premises during the life of Hiram ; that upon his death the title reverted to the plaintiff, as Samuel Crocker’s grantee; that the farm having been partitioned by the deed, to which all the persons then interested in the lands were parties, the partition as thus made is binding upon them and their grantees; and that the plaintiff was entitled to the possession of the premises in question when this action was commenced.

On the trial, the defendants offered to prove by the testimony of the defendant Crocker that when the premises were partitioned, the plaintiff, in the presence of all the parties to the partition, told the defendant Crocker that he would be the sole owner of the property in question after the death of Hiram. This was objected to as “ immaterial and incompetent, and the rights of the parties are fixed by the written instrument; that paroi evidence cannot be given to vary or contradict the terms of this instrument or change their legal effect or affect any rights Mr. Eichards subsequently acquired under his deed from Samuel Crocker; and, also, the matter is collateral and not evidence, and cannot be given to contradict Mr. Eichards on any matter brought out in cross-examination by defendants’ counsel.” This objection was sustained, and the defendants excepted.

“ Defendants’ Counsel: Now, I put the same question and for another purpose, viz.: to show the intention of all the parties, the grantor being present at the time the paper was executed. Objected to on the ground that the intention of the parties must be gathered from their language as embodied in the written instruments. Objection sustained. Defendants except.”

Defendants’ Counsel: “ Mr. Eichards is plaintiff in this action. He has already gone on the stand and testified that Mr. Crocker told him he was acting' as trustee. Now, then, I propose to show what Mr. Eichards told Mr. Crocker in regard to the very matter.”

The Court: “ I don’t think it is proper under that theory, because it was not related to the time spoken of by Mr. Eichards.”

Defendants’ counsel then said: “ I offer it for another reason. I claim that Mr. Crocker was induced to sign this partition deed upon the statements made to him by plaintiff, that he was taking the fee in that property subject to the life estate of Hiram, and that after the death of Hiram the property would be his.” The same objection was interposed, and, in effect, sustained, to which the defendants excepted.

We find in these rulings no error which would justify us in disturbing the judgment. It was in effect an offer upon the part of the defendants to show that when the partition deeds were given, the plaintiff, who was not at that time a lawyer, expressed the opinion that, upon the death of Hiram, the defendant Crocker would become the sole owner of the property. This evidence was not admissible to vary, contradict or change the legal effect of the deed under consideration, or to show the intention of the parties to the deeds which had been executed about a year before. Neither do we think the evidence was admissible upon the theory that the plaintiff would be estopped by such a statement from claiming under the deed subsequently given to him by Samuel Crocker, as it was conceded that such statement was not fraudulently made.

When the plaintiff attempted to show the rental value of the property, it was objected to on the ground that there was no claim in the complaint for use and occupation. The plaintiff’s counsel then asked leave to amend, and the court said that the complaint might be regarded as amended so that it should include a claim for use and occupation not to exceed $1,000. To this ruling the defendants objected “ on the ground that it sets up a specific cause of action, and we are not to try but one cause of action; the cause of action alleged in the complaint,” and excepted to the decision of the court in allowing such amendment. The appellants now contend that the court erred in allowing the complaint to be thus amended, and cites the case of Larned v. Hudson, 57 N. Y., 151, to sustain his contention. It was plainly decided in that case that under the Code of Procedure such an amendment could not be properly allowed, and that a complaint which asked to recover the possession of real estate, with damages for withholding it, was insufficient to justify the admission of evidence of the value of the use and occupation.

Has the Code of Civil Procedure changed the rule ? The appellants claim not, and cite Clason v. Baldwin (56 Hun, 326 ; 31 St. Rep., 350), as sustaining their claim. The case cited holds the doctrine contended for, but when we follow it to its conclusion, we find that, upon a second appeal, after a retrial, the general term again held the same doctrine (20 Civ. Pro. Rep., 291, 294; 87 St. Rep., 213), and the judgment was modified by reversing so much of it as permitted a recovery of damages for the use of the premises. From that decision an appeal was taken to the court of appeals, where it was held that in an action to recover the possession of real property, where the complaint demanded judgment for the possession of the premises, and a sum named as the plaintiffs damage for withholding the same, but did not contain any averment of damage, the plaintiff was entitled to prove, and if he recovered judgment establishing his title, to recover incidental damages for withholding possession after the commencement of the action, including rents and profits, or the value of the use and occupation computed from the commencement of the action, and that the demand in the complaint was sufficient to apprise the defendant to meet the plaintiff’s proof in regard thereto.

It was, however, intimated in the opinion in that case that a recovery of the rents and profits, or the value of the use, as a part of the damages for a time' prior to the commencement of the action, might not be authorized. 129 N. Y., 183; 41 St. Rep., 496; 21 Civ. Pro., 383.

The plaintiff in the case at bar was awarded by the decision and judgment seventy-five dollars damages for the value of the use and occupation of the premises in question from the commencement of the action to the time of its trial. Following the decision of the court of appeals in the case cited, it must be held that, under the complaint as it was originally drawn, (¿he plaintiff was entitled to recover the damages awarded, and, therefore, the allowance of the amendment, even if erroneous, in no way prejudiced the defendants, and furnishes no ground for reversal.

Examining the defendants’ exceptions to the exclusion of evidence as to the condition of Samuel Crocker when the conveyance to the^ plaintiff was made, we find that a portion of the evidence rejected was that of the defendant Crocker as to the condition of his father during the last two or three years of his life. ^ This evidence was objected to as incompetent, immaterial and inadmissible, and calling for a transaction or communication with the decedent, under whom the plaintiff claimed. It was, we think, properly rejected. The defendant Crocker was a party, and the plaintiff derived his title from Samuel Crocker, deceased. We think the evidence was within the inhibition of § 829 of the Code of Civil Procedure. Holcomb v. Holcomb, 95 M. Y., 316. In that case it was said: “ The words of exclusion are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive - impressions or information from the conduct, condition or language of another. The statute is a beneficial one, and ought not to be limited or narrowed by construction.” In that case it was held that testimony was improperly received of interested witnesses as to conduct and actions of the deceased, tending to show his enfeebled and dependent condition, and as to statements made by him, although not addressed to the witness and made in ignorance of his presence. Matter of Eysaman, 113 N. Y., 62; 22 St. Rep., 136 ; Heyne v. Doerfler, 124 N. Y., 505; 36 St. Rep., 497. The only other evidence that was rejected bearing upon the condition of Samuel Crocker at the time of the giving of the deed to the plaintiff was that of Eli Crocker, who was a son of Samuel Crocker, to whom a portion of the property would descend if the plaintiff’s deed was held invalid. He was asked the question, What was his (Samuel Crocker’s) health during the last three years of his life ?” This was objected to, on the ground that the witness was disqualified from testifying upon this question by § 829 of the Code of Civil Procedure, and the objection was sustained. This ruling seems to be justified by the doctrine of the cases cited. In the Holcomb case it was held, that next of kin were interested in the event of the action within the meaning of § 829.

If, however, it be admitted that the court erred in excluding the evidence of these witnesses, still, we do not think it sufficient to justify a reversal of the judgment, as the defendants proved by the witness, Martha Crocker, the condition of Samuel Crocker during the last two or three years of his life, and there was no evidence to contradict that given by her, nor does it .appear that they sought to prove anything different -by the witnesses whose evidence was excluded. She testified that she lived in the same house with the decedent, that they lived together, that during the last two or three years of his life he was feeble, and did not go out much the last two years of his life. We do not find in these rulings any sufficient error to justify a reversal of the _ judgment.

_ Having examined all the exceptions and questions raised by the appellants’ brief, and having found no sufficient error to justify us in interfering with the judgment, it follows that it should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J. and Merwin, J., concur.  