
    Ambrose Thompson et al., App’lts, v. Albert C. Angell et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 16, 1891.)
    
    Ejectment—Estoppel.
    Plaintiff’s mother died possessed of certain land. Her husband subsequently married again, and he and the second wife, whose name was the same as that of plaintiff’s mother, conveyed said land to defendant’s grantor, who took in good faith and without suspicion of any fraud or claim on-the part of the first Mrs. Thompson’s heirs. Thompson with the proceeds of said sale purchased other land, which he afterward liad conveyed to the plaintiff Ambrose, who gave a declaration of trust which recited the foregoing facts and stated that he held the premises in trust for himself and his sisters. Thereafter he and his sisters conveyed the last mentioned premises and received the consideration therefor. There was evidence tending to prove that plaintiffs knew of the conveyance of their mother’s property as early as 1857. Held, that in the absence of any evidence that plaintiffs were ignorant of the facts, they were estopped from settingup title to the property conveyed to defendant’s grantor.
    Appeal from judgment entered upon verdict directed by the court and from order denying motion for new trial.
    
      James R. Cox, for app’lts; J. H. Choate, for resp’ts.
   Van Brunt, P. J.

This was an action of ejectment, brought to recover possession of the lot and premises known as Ho. 44 Hudson street, in the city of New York, from the defendant Angelí as tenant in possession and John H. Simpson as owner, from whom Angelí hired.

The plaintiffs claim to be entitled to possession as the heirs of Mary Evalina Thompson, the mother of some and the grandmother of others.

In October, 1835, the said Mary Evalina Thompson married one Ambrose W. Thompson, and in 1838 became seized of the property in question in her own right of inheritance.

In September, 1845, she died intestate, being then seized and possessed of the premises in question, leaving her surviving her ' husband, Ambrose W. Thompson, who died in May, 1862, and the plaintiffs, Ambrose Thompson, Emily Chase and Julia Geddings, her children, and another daughter, Margaret Aldis, who subsequently died intestate, leaving the plaintiff, Charles Ambrose Aldis, her only child and. heir-at-law. Ambrose W. Thompson, about two years after the death of his first wife, intermarried with Mary Ewing Richey, the second wife thus having the same baptismal name and the same middle initial as the deceased wife, both being Mary E. Thompson. In 1863, Thompson and wife sold the premises in question to John H. Glover and wife, Glover supposing that the Mary E. Thompson was the same Mary E. Thompson upon whom the title to these premises had devolved in 1837, and in the deed taken by Glover the devolution of the title upon Mary E. Thompson was recited. The Glovers improved the property in question, and in 1868 sold the same to one Smith, and Smith’s executors, in March, 1882, sold and conveyed the same to the defendant Simpson. All these conveyances were made in perfect good faith, and none of the various grantees had the slightest suspicion of the fraud which had been perpetrated, or of any defect in the title or of the claim on the part of the first Mrs. Thompson’s heirs. There was some evidence from which it might be inferred that Thompson used the money obtained by the original fraud to purchase a house on Madison avenue in this city. This, however, is challenged by. the plaintiff, but in view of the fact that no request was made to go to the jury upon any point, there being some evidence, although slight, from which this fact might be inferred, and that inference having been drawn by the court, it cannot be disturbed upon appeal. Thompson exchanged this house on Madison avenue for some property at Eye, then owned by John A. Dix, and procured a conveyance of the latter property to his son Ambrose, one of the plaintiffs herein, who was then under age, and he simultaneously with such conveyance executed a declaration reciting that the said Mary Evalina Thompson was in her lifetime and at the time of her death seized of the premises in question; that her husband had since her death caused said premises to be sold and conveyed, and had received, and has ever since held and controlled the purchase money thereof upon the distinct understanding, declaration and agreement that he held the same for the use and benefit of the children of the said Mary Evalina Thompson, to whom said property descended upon the death of their mother; that the father had thereafter become seized of the house and lot on Madison avenue, which he had lately sold and conveyed to John A. Dix for certain premises at Eye, and had caused the conveyance of the said last mentioned premises to be executed by said Dix and wife to the said Ambrose, the son; that the sole purpose of such conveyance was to protect and secure the children of said Ambrose and Mary Evalina Thompson in the use and enjoyment of an amount of property equal to that held by their mother, and to that end the said Ambrose should hold and take the said lots and premises in trust for himself and his sisters, and to carry such purposes into effect he had promised and agreed to hold same upon said trust and accepted said deed and took possession of said premises as such trustee. This declaration was recorded simultaneously with the Dix deed. Upon the exchange of the Madison avenue property for that at Eye a bond and mortgage for $15,000 was given by Ambrose Thompson to Dix on the Bye property. Thompson subsequently, in 1865, mortgaged the Eye property to Thaddeus Davids to secure $6,000. In 1867 Ambrose Thompson individually and as trustee for his sisters, and the said sisters themselves, conveyed the property for an expressed consideration of $60,000 to Benjamin W. Bonney, the assignee of a contract of sale thereof to one Joseph B. Stewart.

At the time of the execution of the deed to Dix all the children had become of age, and there is evidence tending to show that they had knowledge of the facts contained in the declaration of trust. The purchase money mortgage for $15,000 was foreclosed in 1868,' Ambrose Thompson and his sisters being made parties, which foreclosure resulted in a surplus. Out of this surplus Davids claimed to be paid the amount due on his mortgage, which claim was resisted by Bonney’s representatives,* he having died in the meantime, and it was adjudged that the grantee of Ambrose Thompson’s sisters was entitled to four-fifths of the surplus, who, through their conveyance to Bonney, owned four-fifths of the Eye property upon which four-fifths of the mortgage to Davids never attached.

There was evidence tending to show that as early as 1857 the children of Mary Evalina Thompson were aware of this conveyanee of the Hudson street property. The youngest of Mary Evalina Thompson’s children attained her majority in April, 1866, and the defendant Simpson acquired his title, as above stated, in 1882. It would thus appear that these children,- knowing their rights, permitted the property to be sold as though a title had been conveyed to the Glovers without, in any manner, informing the purchaser of any claim that they might have.

At the close of the trial each party asked for the direction of a verdict. The court directed a verdict in favor of the defendants, and from the judgment, and from an order denying motion for new trial, this appeal is taken.

It is urged upon behalf of the plaintiff that by the deed of Thompson and wife to Glover no greater interest passed than the grantors possessed, that is, the life estate of Ambrose W. Thompson as tenant by the curtesy.

That is undoubtedly true as an abstract proposition, and unless some of the other circumstances which have been above adverted to prevent the assertion of their title by the children of Mary Evalina Thompson, they would be entitled to recover in this action.

We think that there is a principle which precludes these children from asserting now their legal title: and that is that they have received and participated in the proceeds of this sale with knowledge of the fact of the sale, with knowledge of the fact that an attempt had been made by Thompson and his second wife to convey the title of these premises in Hudson street.

It is urged that there is no evidence to support this proposition and that at most all that the evidence tends to show is that they were aware that their father had sold his life estate. But we think that the evidence authorizes an additional inference; because we find from the testimony that the children were speaking of this substitution of property as far back as 1857, and we find in the declaration of trust a recital that Ambrose W. Thompson since the death of his wife had caused the said real estate and premises to be sold and conveyed, not his interest therein, not a life estate therein, but the premises to be sold and conveyed, and had received the purchase money upon the distinct understanding, declaration and agreement that he held the same for the uses and benefit of the children of his first wife. What interest or rights had the children of his first wife in what Thompson sold his tenancy by the curtesy for ?

It is apparent that the conveyance referred to in this declaration meant a conveyance of the whole fee, and any person reading that declaration must necessarily come to that conclusion. This declaration -of trust gave to these sisters a title which they conveyed and it is reasonable to assume that they knew from whence their interest came. In any event it called upon them to show their ignorance.

It is true that at the time of the trial three of these children were dead, but there were two living and able to testify, one of them certainly being a paralytic, but with nothing to show that she would not have made a competent witness; and under the peculiar circumstances of this case it seems to us that the rule that where a party may produce evidence throwing light upon a subject pertinent to the inquiry and fails to do so, it may be presumed that they did not because it would tend against them, applies.

The claim that the trust agreement conferred no rights upon the children until they surrendered and released their inheritance cannot prevail. They accepted the property conveyed by the trust deed and they conveyed that property and presumably received the consideration. It is idle to say that a party may receive the fruits of a transaction and not be bound by its conditions. Therefore these children having received the proceeds of this sale knowing that their father and stepmother had attempted to convey an absolute title, are now estopped under the plainest principle of the law governing estoppel from setting up a title to property the proceeds of which they have pocketed.

It mattei’S not what you call it, ratification, equitable estoppel, assumption of the covenant of warranty or anything else. The law will not permit the owner c:2 property to accept the proceeds of a sale of that property, even though made by a stranger, and then set up a title in himself; and this principle we think controls the disposition of this case.

The counsel calls attention to certain exceptions -to the admission of evidence, and urges that it was error because it was directly adapted and calculated to prejudice the appellant’s case and to enlist the sympathies of the jury, and to distract them from the true issues before them; a somewhat remarkable claim in view of the fact that he concedes upon the record that there was no question to be submitted to the jury.

. The counsel also in language little decorous criticises the citation by the learned judge below of cases in other states in regard to the effect. of this evidence. In view of this fact it is somewhat remarkable that he should cite in support of his proposition that as long as the statutes of this state stand Ambrose W. Thompson sold his life estate only, a Maryland case, and the only one cited on that particular point.

Upon the whole case we think that a correct conclusion was reached by the court below, and the judgment should be affirmed, with costs.

Brady and Daniels, JJ., concur.  