
    Cornelius A. Van Wagener, Resp’t, v. William B. Royce et al., Adm’rs, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    Decedent’s estates—-Contract—Loches.
    In order to settle conflicting claims to property against which a foreclosure was pending, plaintiff and others in 1881 entered into an agreement under seal with defendants’ intestate, by which the foreclosure sale was to be postponed, the interests of plaintiff and the others conveyed free of incumbrances, and for these intestate was to pay $8,000, of which $500 was to go to plaintiff, and to settle certain litigations and judgments. Plaintiff quit-claimed to one G., who conveyed to one H., who purchased on the foreclosure sale and conveyed to intestate, and the latter paid him $1,200, none of which came to plaintiff. Plaintiff was compelled to pay one of the judgments which intestate agreed to settle, but did not. Claim for the amount due to plaintiff and the amount so paid by him was presented in 1889 to the administrators, and referred. Held, that the delay in asserting the claim, as to which no explanation was required, was not so great as to invalidate it; that there was nó proof of an abandonment of the agreement, and that under the circumstances payment of the claim was properly ord. red.
    Appeal from judgment entered upon the report of a referee in proceedings upon a disputed claim against the estate of Henry R. Low.
    
      B. F. Low, for app’lts; Greene & Bedell, for resp’t.
   Dykman, J.

The plaintiff in this action presented a claim for eleven hundred dollars against Henry R. Low, deceased, to his administrators with the will annexed, which they rejected.

A reference was thereupon made under the statute and the referee reported in favor of the plaintiff for the full amount of his claim.

Judgment was duly entered upon the report and the defendants have appealed therefrom.

The claim was based upon an agreement in writing under seal, between Jesse C. Hansee, C. A. Van Wagener, the plaintiff, and Henry E. Low, dated on the 2d day oí December, 1881. The writing seems to have been signed by M. E. Hansee, also. The agreement was this: “ It is agreed by and between the undersigned Jesse C. Hansee, C. A. Van Wagener, and Henry E. Low, as follows: First. That the mortgage sale of the Sam’s Point property shall be postponed to the 16th day of December, 1881, without prejudice to either party.

“/Second. H. R. Low will pay the sum of $3,000 in full settlement of all claims which Jesse C. Hansee, Maryette Hansee and said C. A. Van Wagener, representing himself and Gertrude Chipp, have against the said Sam’s Point property, which property is the same property advertised to be sold under a decree of sale, made on the 15th day of October, 1881, before Judge Barnard, and is intended to include all the right, title and interest which each of the parties have in said property,-and all costs and attorneys’ fees, printers’ fees, and other costs and charges relating to said sale and foreclosure, also the mortgage of $300 given heretofore to William J. Groo, now held by Henry C. Duryea, receiver.

“Third. The said Low is to "cause all suits and judgments against Maryette Hansee, Jesse C. Hansee and said C. A. Van Wagener, growing out of the litigations relating to said property to be withdrawn and cancelled, such judgments and suits being the following:

“First. The suit and judgment of Maryette Hansee against Thomas Botsford and Adele Van Gorder.
“Second. Judgment in matter of Sackett L. Duryea against Thomas Botsford.
Third. Suit of Van Wagener and Elliott against Thomas Bots-ford; and said Jesse C. Hansee to assign to said Low the said judgment against William J. Groo. All said interest of said parties above named in the said mortgaged premises, and in the road leading to the same owned by said Hansee, shall be conveyed clear of incumbrances. Of the sum of $3,000, the sum of $500 is to be paid to said Van Wagener and the principal sum and interest on the same due Gertrude Chipp, but not attorneys’ fees, the balance of it to be paid Jesse G. Hansee.
“The suit of C. A. Van Wagener and Maria A. Elliott against Thomas Botsford to be settled and discharged as above provided.
“The said Low is to pay J. C. Hansee fifty dollars, to pay receiver and attorneys’ fees in case against Groo. The payment to be made on December 16, 1881, on delivery of the various deeds and transfers mentioned, at Kingston, Hew York.
“ Sealed and dated December 2, 1881.
“H. R. Low, [l. s.]
“Jesse G. Hansee, [l. s.]
“M. E. Hansee, [l. s.]
“ G. A. Van Wagener. [l„ s.]”

In pursuance of an understanding between the parties to that agreement, the plaintiff and his wife executed and delivered to John G. Gray a quit claim deed of all their interest in the property designated in the agreement. That deed was dated December 3, 1881, and on the 24th day of January, 1882, John G. Gray and his wife executed and delivered to Jesse 0. Hansee a quitclaim deed of the same property.

On the 16th day of December, 1881, the property was sold under the judgment of foreclosure and Jesse 0. Hansee became the purchaser and received the deed from the referee.

On the 7th day of February, 1882, in pursuance of the agreement, Jesse 0. Hansee with his wife executed and delivered a deed of the premises to Henry E. Low, who accepted and recorded the same.

At the time of the execution and delivery of the deed from Hansee to Low,' the latter paid the former $1,200, but no part of' that money came to the plaintiff.

Low did not pay to the plaintiff the sum of $500, as he was to-do under the agreement.

Low did not pay the judgment of Van Wagener and Elliott-against Thomas Botsford nor cause the same to be cancelled, as he undertook to do in the agreement, and the plaintiff was compelled to pay $600 to the attorney of Botsford in that action, by reason of such neglect of Low.

When the agreement was made the property was advertised to-be sold the next day under the judgment in foreclosure. Thomas Botsford had given the mortgage which was in process of foreclosure, and he claimed some interest in the property and was in ' possession.

The plaintiff in this action, William J. Groo and Jesse C. Han-see, each claimed an interest in the property, and the purpose of the agreement was to concentrate and settle those conflicting interests and claims, and the sale was adjourned to afford time for the consummation of such designs.

The plaintiff made a quit claim deed of his interest in the property to Gray, and he in turn made a quit claim deed to Hansee, but he neither paid nor received any money, and now the plaintiff claims that an action has accrued to him against Low, by virtue of the agreement, to the extent of $1,100.

On the other hand, the defendants claim that the agreement-was abandoned. That it was found to be impracticable to carry out the designs of the parties, and the sale took place as if the agreement had not been made.

A careful examination of the case discloses circumstances in favor of the contention of both sides.

The great delay in the prosecution of the plaintiff’s claim is an unfavorable fact, but not conclusive against its validity.

Then again, when Hansee bid off the property his bid was-$1,405, and when Low took the conveyance from Hansee he only paid $1,200, and agreed to reconvey upon repayment of that sum, and Hansee paid $205 for the costs out of his own pocket, and it is claimed that his conveyance did not include the whole property.

These are strong circumstances in favor of the defendants and cause much hesitation. Yet, it is to be said on the other hand that Low agreed to pay $8,000 in settlement of the claims of the plaintiff, representing himself and Gertrude Chipp, and that her claim was paid from the money received from Low.

The plaintiff did make a conveyance of his interest in the property which eventually became vested in Low, and if his conveyance failed to include all the property it was no fault of the plaintiff, and seems to have been at most but the result of a mistake which could have been corrected by Low at any time.

The agreement of Low to reconvey was with Hansee and could not affect the rights of the plaintiff under the agreement. Moreover, the deed invested him with title, and it could only be declared a mortgage at the instance of one of the parties, and no movement was ever made in that direction. If the plaintiff paid $600 for his own protection to retire the suit of Botsford, it Avas for protection which Low agreed to furnish, and if lie pays that sum and the $500, he will pay no more than he undertook to pay by the agreement, and if the plaintiff does not recover his claim here he will lose all, as his interest in the property has passed to Low.

There is no proof of the abandonment of this agreement, and the payment of the claim of Gertrude Ohipp with money received from Low was in pursuance of its provisions.

Moreover, it is by no means certain that his conveyance from Hansee does not include ail of the property.

Under all .he circumstances we think the ends of justice will be attained by an affirmance of this judgment.

Judgment affirmed, with costs.

Pratt, J.

We think the testimony of Hansee shows that as between him and Low the deed had somewhat the character of a mortgage, and that Low was to reconvey upon being made good the amount of his investment

We do not find evidence that Hansee was bound to reimburse Low.

• It may well be that Hansee had an option without being under obligation to Low. But if we assume' that to be the situation, we do not see that it affects the rights of the parties here. Hansee did not repay Low, and the statute of limitations is now a bar to his right to claim a reconveyance.

The property which the plaintiff parted with became vested in Low and now is a part of his estate.

If plaintiff Avas aware that Low was acting as a friend of Han-see, not primarily seeking his own benefit, that may explain why he rested seven years without enforcing his rights.

In this connection it is fair to mention that he was not called on for an explanation of the delay. It may well be that such explanation, if called for, would have been ample; and Judge Groo, who is one of the administrators of Mr. Low, and who was a party to the agreement sued on, did not testify in the cause, which he surely would have done if his evidence would have been aseful to defendants.

Upon the whole case we are of opinion that the judgment should be affirmed without costs.

Judgment affirmed, without costs.

Barnard, P. J., concurs.  