
    Emilie W. Dana, Respondent, v. John Jones and Others, Defendants. James Costello, Appellant.
    
      Will — under what power of sale a good title canbe conveyed — when the title passes subject to such power—devise and, power not inconsistent—proof required of a purchaser refusing to complete a judicial sale —proof as to a deed being unsealed — record of an unsealed deed as notice.
    
    The will of a testator provided, '' I give and bequeath and devise unto my beloved wife, Ellen Ward, all my estate both real and personal to be for her own use and the use of our children as long as she remains my widow and unmarried after my death, giving and granting unto her full power to mortgage, lease or sell any or all of my real estate in the same manner as I could do if living,” and further, It is my desire and I hereby direct and it is my will that.my said wife have the right to bequeath and devise my said estate to my children and to them only as she in her sound discretion may seem fit and as the said children may seem deserving.”
    
      Meld, that a deed of the testator’s real estate executed by the widow personally and as executrix under the will conveyed a good title to the premises;
    'That the widow was not called upon to devise the testator’s real estate to his children, but “to devise my said estate” in whatever form it should happen to be after the widow had exercised the power of sale given to her;
    That, assuming that the title to the testator’s real estate vested in his children, their interest was subject to be divested by the exercise of the power of sale;
    That the existence of a power of sale was not inconsistent with the devise of a vested estate in the same property.
    The purchaser at a judicial sale of real property refused to complete his purchase on the ground that certain conveyances of the property subsequent to the mortgage were not under seal. The only evidence of this fact was that the record of these conveyances did not disclose the fact that they were sealed, although such records did show that the deeds contained a recital that they were executed under seal. The original deeds could not be found nor were any affidavits presented by any person who had seen the original deeds.
    
      Meld, that the court was justified in denying the purchaser’s motion to be relieved from his purchase;
    That, under the circumstances, he had not established the fact that the conveyances were not sealed;
    That the recording of the deeds in question, assuming a seal to be necessary, operated as notice to a subsequent purchaser of the same interest or title from ;the same grantor of the conveyance of the equitably title for a consideration paid.
    Appeal by James Costello from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of December, 1903, denying the appellant’s motion to be relieved from his purchase of the real estate sold upon a. judicial sale in the above-entitled action.
    
      James P. Judge, for the appellant.
    
      Tompkins McIlvaine [Herbert Frazier with him on the brief], for the respondent.
   Woodward, J.:

James Costello, as the assignee of the purchaser of the premises described in the complaint in this action, makes application to the court to be relieved from the purchase, and to be reimbursed for his deposit and expenses. His motion has been denied, and appeal «comes to this court from the order entered.

It is urged on this appeal that-the purchaser has a right to a good merchantable title, a proposition too obvious to require citation of authorities, and two objections are raised to the title offered. One. ■of these is that a certain power of sale contained in the will of one Hugh Ward is invalid, and the other that certain deeds asserted to-be without seals, “ did not convey a marketable title and are not. notice under the Recording Acts.”

The mortgage to foreclose which this action was brought was. made by one Marsland to the plaintiff in 1880, and it is admitted that the mortgagor had at that time a good legal record title to the premises in question. Subsequent to the execution of the mortgage the grantor had by mesne conveyances conveyed said premises, to one Hugh Ward who died leaving a will which was admitted .to-probate November 5, 1885, and it is with reference to this will that the first objection arises. This will provided in its 1st paragraph for the payment of the lawful debts, and then the testator adds t “ I give and bequeath and devise unto my beloved wife, Ellen Ward, all my estate both real and personal to be for her own use and the use of our children as long as she remains my widow and unmarried after my death, giving and granting unto her full power to mortgage, lease or sell any or all of my real estate in the same manner as I could do if living.” In the 2d paragraph he declares-that “ It is my desire and I hereby direct and it is my will that my said wife have the right to bequeath and devise my said estate to-my children and to them only as she in her sound discretion may2 seem fit and as the said children may seem deserving.”

The evident purpose of the testator was to vest the estate, as a. whole, in his family, subject to such distribution as his wife' should determine to be proper, and to this end the widow was invested with the power to sell the real estate,-not for her own benefit, but for the . benefit of the estate; she was given a power to- convert the real estate into personal property, and she was t-o “have the right to*, bequeath and devise my said estate to my- children.” etc. She was not called u’pon to devise his real estate - to his children,, but “my said estate” in whatever form it should happen to. be after the widow1 had exercised the power of sale which had been given her. In, selling the real estate she did not diminish, the estate, she simply changed its form, in accord with the letter and spirit of the will, and we discover no reason why she could riot entirely divest her children and herself of any interest whatever in the real estate. Assuming that the title vested in the children, it was subject to the power of sale as to the real estate, and this power is not inconsistent with the devise of a vested estate in the same property. (Cussack v. Tweedy, 126 N. Y. 81, 87, and authorities there cited; Rose v. Hatch, 125 id. 427.) It is clear, therefore, that in so far as the objections relate to the transfer by Ellen "Ward personally and as executrix and trustee (she having been named as executrix in the will) it is without merit. She had a perfect legal right to act, and the sale conveyed a good legal title.

Ellen Ward, as we have seen, had the power to sell the real estate, and she exercised this power, conveying the premises, subject to the mortgage, to one Drake, the deeds being duly recorded. Drake subsequently conveyed to one Duane, who, in 1890, conveyed to one Jones. Jones conveyed to one Witt, and Witt, in 1903, conveyed to one Schultz, who conveyed to the defendant Raymond D. Fuller. All of these deeds are duly recorded $ all of them refer to the mortgage involved in this controversy, and all of the deeds recite that they are given under the hand and seal of the grantor. The defect relied on by the appellant is that the deeds of Duane to Jones and Witt to Schultz were not under seal, and the only evidence of this defect is that the records of the deeds do not disclose the fact of their being sealed, it not being contended that any one making affidavits on this motion has seen the deeds, and a diligent search on the part of the plaintiff has failed to discover the whereabouts of the original documents. The deeds themselves not being found, and the official records not showing that they were not sealed, and the recitals declaring that they were, and the deeds complying with all of the other requirements of the law, the appellant has not made a strong case in favor of his contention, the burden being upon him to furnish the evidence of a defect in the title offered. (Todd v. U. D. S. Institution, 118 N. Y. 337, 343.) It was held in this same case (p. 347) that a failure of the record to show the presence of "a seal was not affirmative evidence of the absence of a seal at the time it was made, and in the absence of some evidence to the contrary, we are clearly of opinion that the appellant has failed to show any defect in the title offered to him, particularly as the deeds in question do not form a link in the title. The recording of these deeds, assuming a seal to he necessary in both cases, operated as a notice of the conveyance of the equitable title for a consideration paid to a subsequent purchaser of the same interest or title from the same grantor (Tarbell v. West, 86 N. Y. 280), and as Witt took title from Jones, the record showing only the equitable title in him, it may be assumed that Witt satisfied himself of the legal right of Jones to make the conveyance, which would involve the presence of the seal upon the original deed from Duane to Jones. This is not, of course, conclusive on the question < of the presence of the seal upon the original deed, but it affords as much evidence of the fact, perhaps, as the absence of the seal in the record, and justified the court at Special Term in refusing to grant the relief demanded.

Several other interesting questions are suggested, but the. appellant having failed to show that the plaintiff is not in a position to convey a merchantable title, there seems to be no need of determining moré. The mortgage in suit has been duly foreclosed and a sale of the property has been made; the appellant fails to show that the title is not good and merchantable, and the orderly course is- to affirm the order appealed from.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  