
    Garrett C. Moore et al., App’lts, v. Charles E. Appleby, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Partition—Real estate devised in trust—Persons holding the ESTATES IN REMAINDER MUST BE .MADE PARTIES TO ACTION.
    The title offered to plaintiff came to defendant through the will of Gideon Tucker, and under proceedings in partition instituted by Charles W. Tucker, as trustee, but to which action certain persons entitled to the property in remainder were not made parties. In an action by plaintiff to recover the amount of a deposit paid on the contract for the purchase of said property and the expense of searching the title: Held, that an estate in trust mainly for the benefit of the cestui que trust cannot be set up against the remaindermen who were not made parties and they are not concluded by the partition judgment; that plaintiff was entitled to recover back the money paid in anticipation of the performance by defendant of the contract to convey.
    3. Same—Costs—Extra allowance—Code Civ. Pro., § 3253, sued. 2.
    The allowance made by the trial judge exceeded five per cent on the recovery. Held, that it was properly reduced under Code Civil Procedure, section 3253, subdivision 2; that the case was one where a sum of money was claimed and recovered and that that was the only object of the action; that the value of the subject-matter incidentally involved by the nature of the controversy was not material. t
    Appeal from a judgment of the supreme court general term first department, affirming a judgment entered upon the verdict of a jury in favor of plaintiff rendered at the ■circuit.
    The defendant tendered a deed of certain property at the time mentioned in the agreement for the purchase of said property, but it was refused for the reason that the title was considered to be materially defective.
    The property consisted of a part of the estate of Gideon Tucker, and by a codicil to his will it was in part devised to his executor in trust for the benefit of the _ testator’s son Charles. So much of the codicil as made this devise is as follows:
    “All the share, interest, and portion of my estate, both real and personal, which is in and by said last will given, devised and bequeathed unto my said son Charles; I do give, devise and bequeath unto my son ■ George W., his heirs, executors, administrators and assigns, upon the following trusts, that is to say, to collect, receive and take unto his possession all personal estate belonging or appertaining to such share, and all the rents, issues and profits of the real estate, part and parcel of such share of my said son Charles, and apply all the rents, profits, interest or income of such share to the use of my said son Charles, during his natural fife, and upon his death, leaving, a lawful child or children, to assign, transfer and convey the said share, interest or portion of my said estate, real and personal, unto such child or children, their heirs, exécutors, administrators and assigns, equally to be divided among such children, if more than one; and in case my said son Charles shall die without leaving any such child or children, then to convey, assign and transfer such share of my said estate to the heirs at law of my said son Charles/’
    After the decease of the testator, the executor, in his own right and as trustee for his brother Charles, commenced an action to partition the estate of the testator. But neither of the persons presumptively or actually entitled to take the property in remainder which was devoted to the Objects of the trust, was made a party to the suit in partition.
    This property, with other parcels of the estate, was purchased by the trustee and others, and a subsequent action for its further partition was afterwards brought between them, resulting in a partition and division of the property. But in the latter action there was the same omission to make the parties entitled to the land in dispute, parties to the action, and it was mainly because of these omissions that the plaintiffs refused the title which the defendant offered to convey to them in fulfillment of his agreement.
    
      Wm. Mitchell, for pl’ffs; A. H. Wagner, for def’ts.
    
      
       Affirming 36 Hun, 368.
    
   Danforth, J.

The title offered to the plaintiff came to the defendant through the will of Gideon Tucker and under proceedings in partition instituted by Charles W. Tucker as trustee, but to which action certain persons entitled to' the property in remainder were not made parties. It is clear that an estate in trust, mainly for the benefit of the cestui que trust cannot be set up against them. As to them, the principle contained in the maxim, “res inter alios acta nemini decebit,” applies, and the court below properly held that they would not be concluded by the partition judgments. Watson v. City of Kingston, 4 N. Y. State Rep., 779.

It follows, therefore, that the purchaser" should not be required to complete his bargain, for there was left at least a reasonable chance that the person so interested might raise a question against his title. Brooklyn Park v. Armstrong, 45 N. Y., 248; Jordon v. Poillon, 77 id., 518; Jenkins v. Fahey, 73 id., 355.

He was, therefore, entitled to recover back the money paid in anticipation of the performance by the defendant of the contract to convey. This was $1,600, and with interest, and $300 expenses incurred in the investigation of title constituted the amount in controversy. The allowance made by the trial judge exceeded five per cent on the recovery, and was, therefore, properly reduced to conform to the provisions of law relating to it. Code, § 3253, subd. 2. The case is one where a sum of money is claimed and is recovered; that was the only object of the action. The value of the subject matter identically involved by the-nature of the controversy is, therefore, not material.

Both appeals fail, and the judgment of the court below should be affirmed, without costs to either party.

All concur.  