
    Mayer Kahn, Resp’t, v. Chester Chapin, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 15, 1895.)
    
    Trust—Purchase by trustee.
    The mere fact that the trustee personally purchased the trust property at a foreclosure sale, does not render his title void, but voidable only at the election of the beneficiaries; and the title of the trustee and his grantee may be confirmed by acquiescence and the lapse of time, as well as by the express act of the beneficiaries.
    Appeal from a judgment in favor of plaintiff.
    September 6, 1851, Abel Harker died, seized in fee of No. '291 West Twelfth street, subject to a mortgage to secure the payment of $3,500, executed by him and his wife October 6, 1847, and recorded October 7, 1847. Abel Harker left, him surviving, .Jane Ann Harker, widow, and four daughters, his only heirs and next of kin. He left a last will and testament, which was duly probated September 25, 1851, by which two executors were nominated, both of whom refused to qualify, and on the 2d of October, 1851, letters of administration with the will annexed were issued to the widow and James Wooley who accepted the trust and administered the personalty. By the will a trust was established over the realty for the benefit of' the widow and children. Wooley also assumed the execution of the trust created in the real estate. February 1, 1866, upon the petition of the widow and the four daughters, Joseph Harker, a nephew of. the testator, was appointed as trustee to execute'the trusts created by the will, and entered upon the discharge of his duties. February 27,1866, Cornelius Yanderbilt, the assignee of the aforesaid' mortgage, began an action for its foreclosure, in which the widow, the four daughters, the persons name.d as executors in the will, and the trustee were made parties defendant, all of whom were served. All of the parties were of full age, except Virginia C. Harker and Louise E. Harker, who were upward of fourteen on February 28, '1866. A guardian ad litem was appointed for the infants, who appeared and served the usual answer, submitting their rights to the court. A judgment of foreclosure was recovered April 30, 1866. The premises were sold and conveyed May 22, 1866, in pursuance thereof, to Joseph Harker, for $9,000. After the payment of the judgment and the costs of sale, there was a surplus of $5,038.57, which wms paid by the referee to the chamberlain of the city of New York. Afterwards Harker applied, as trustee, for an order directing the payment of the surplus to him. The matter was referred. The infants appeared upon the hearing by their guardian, and the surplus was directed to be paid to Harker, as trustee. The two infant daughters became of full age on or before February 28, 1873. March 15, 1881, Joseph Harker and his wife conveyed the premises to Chester W. Chapin for $14,000, by a deed recorded March 18,1881. Subsequently the grantee died, leaving this defendant his sole heir, who acquired the title which his father acquired under the aforesaid deed, and has since remained in possession of the premises. October 19, 1892, the litigants entered into an executory contract by which the defendant sold and agreed to convey to the plaintiff, by a warranty deed, said premises, in consideration of $16,000. On the date fixed for passing the title, the plaintiff refused to accept the conveyance tendered by the defendant, on the ground that his title was defective, because the trustee personally purchased the property at the mortgage sale, and defendant’s title was derived from him. Afterwards this action was brought, the plaintiff asking tliat the contract be specifically performed in" case the defendant was able to convey a good title, but, if not, that damages be awarded. The defendant answmred, denying that his title was defective, and demanding a judgment that the contract.be specifically performed. At the conclusion of the trial, the plaintiff waived his objections to the title, and announced that he was ready to take the conveyance tendered and execute the contract. The defendant waived all claim to affirmative relief, and thereupon a judgment was entered directing him to convey the premises to the' plaintiff by a warranty deed. No costs were awarded to either party. The defendant appeals and insists that the court erred in directing him to convey to the plaintiff and warrant a defective title.
    
      Alfred A. Gardner, for app’lt; Abner C. Thomas, for resp’t.
   Per Curiam.

At the date of the trial, twenty-eight years had elapsed since the trustee purchased at the mortgage sale, twenty-two years had passed since the testator’s youngest daughter became of full age, and thirteen years had run since the defendant’s father acquired his title. All of the daughters are now living, except one, who was not a minor at the date of the foreclosure. The trustee is also living, is financially responsible, and is still engaged in administering the trust. During all this time the action of the trustee had never been questioned. The premises were not sold by his act or procurement, but pursuant to a mortgage executed by the testator; and the mere fact that the trustee personally purchased the property at a foreclosure sale does not render his title void, but voidable only at the election of the beneficiaries, and the title of the trustees and of his grantee may be confirmed by acquiescence and the lapse of time, as well as by the express act of the beneficiaries. Harrington v. Bank, 101 N. Y. 257; Lewin, Trusts (8th ed.) 495. It is not asserted that the property did not sell for its full value at the mortgage sale, and it expressly appears that the surplus money was recovered by the trustee in a proceeding to which the widow and all of the children were parties. The beneficiaries, having knowledge of the sale, and having received the benefit of it, and acquiesced for so many years, would not be permitted to disturb the title of a purchaser, ut would be left to their remedy against the trustee, if they have any cause for complaint against him. Neither litigant had declared the contract abandoned, or had absolutely refused to perform it, until the trial -was conelnded. When the evidence was all in, and the state of the title developed, the plaintiff withdrew his objections, and offered to take title; and it was then too late for the defendant, as a matter of right, to refuse to perform his contract. The alleged defect, which, under the circumstances, we think is not a substantial one, existed when the defendant executed the contract and covenanted to warrant the title to the plaintiff; and we tninlc the court did not err in compelling the defendant to perform his contract.

The judgment should be affirmed, with"costs.  