
    Vincent R. Prentice, Respondent, v. Edward I. Townsend and Others, Appellants.
    Second Department,
    February 24, 1911.
    Vendor and purchaser — contract to convey land — unmarketable title — conveyance by executor to himself — damages for breach of contract — architect’s fees.
    A conveyance by an executor vested with power of sale of lands belonging to the estate made to himself either directly or indirectly without leave of the court is voidable.
    Three brothers contracted to convey certain land to the plaintiff. The property had formerly belonged to the father of the vendors. By his will he had appointed one of the vendors executor with power to sell all his real estate. The executor sold the land in question to his two brothers and they at the same time conveyed to him individually a one-third interest therein.
    
      Held, that the three brothers individually could not convey a marketable title;
    That although the conveyance to the brothers had been made fourteen years before, the Statute of Limitations did not avail to perfect the title.
    Where it appears that before the transfer to his brothers the executor had conveyed the same property through third parties to himself individually and that in a subsequent partition action to which the defendants were parties those conveyances had been declared void, that j udgment is binding on the defendants. Expenditures .by a purchaser for improvements while he is uncertain about his title cannot be recovered in an action for breach of the contract to convey. Architect’s fees for preparing plans for buildings on the property cannot be recovered by the purchaser even though by the terms of the contract of purchase he had agreed to erect a house upon the land within a year.
    Appeal by the defendants, Edward I. Townsend and others, from a judgment of the County Court of Rockland county in favor of the plaintiff, entered in the office of the clerk of said county on the 21st day of July, 1910, upon the verdict of a jury, and also from am order entered in said clerk’s office on the 25th day of July, 1910, denying the defendants’ motion for a new trial made unon the minutes.
    
      William E. Gowdey, for the appellants.
    
      Frank Comesky, for the respondent.
   Jenks, P. J.:

The objection to the title rested upon the facts that the realty was vested in the three defendants under the father’s will, and that the records showed the defendant E. I. Townsend, as sole executor of said will, conveyed the property to his two brothers, the other defendants, in 1895, who on the same day conveyed to him personally a one-third interest in the realty. There was or is no contention that there was leave of court for conveyance by the executor to himself. The title was rejected on February 17, 1909, and the accounts of the executor were not filed until June 4, 1909. We think that the objection justified the rejection. Such conveyance was voidable (Gardner v. Dembinslcy, 52 App. Div. 473 ; affd., 170 N. Y. 593; People v. Open Board of S. B. B. Co., 92 id.98), and the doctrine of caveat emptor might apply to this plaintiff. (People v. Open Board of S. B. B. Co., supra ; Maupin Marketable Title to Real Estate, 109.) We think that the Statute of Limitations did not avail to perfect the title. The conveyance was made in 1895. In People v. Open Board of S. B. B. Co. (supra) the executor did substantially what was done in this case, and the court, per Finch, J., say: The purchaser here is not protected as one buying in good faith and without knowledge of the breach of trust, for he has ascertained the facts, so far as they are known, before any acceptance of the deed or payment of the purchase-money. ( Wormley v. Wormley, 8 Wheat. 449.) For is the lapse of time conclusive upon the beneficiaries under the will of Meier. Twenty years had not elapsed when this attempted sale was made. In Hawley v. Cramer (4 Cow. 735), it was said that an application to set aside the sale must be made within a reasonable time, of which the court must judge under all the circumstances, and twenty years was named as the shortest period which a court of equity would be bound to consider an absolute bar. If a resale was refused after eighteen years (Gregory v. Gregory, Coop. Ch. Cas. 201), and after sixteen years (Bergen v. Bennett, 1 Caine’s Cas. in Error, 1), on the other hand in Hatch v. Hatch (9 ves. 292) the sale was set aside after the lapse of twenty years; in Dobson v. Bacey (3 Sandf. Ch. 60), after twenty-seven years; in Purcell v. McHamara (14 Ves. 91), after seventeen years. Of course in all these cases diverse and varied circumstances operated to affect the judgment of the court and produced very different results, but they show that such time as has elapsed in the present case is not necessarily conclusive, and that the purchaser taking the receiver’s deed, and in total ignorance of the occasion or circumstances of the delay, would run the risk of an adverse decision and hold at the best only a doubtful title. Infancy, ignorance, concealment, or misrepresentation might come to explain and excuse the delay, and prevent it from amounting to acquiescence.”

I may add that at the time of the objection the purchaser offered to take an executor’s deed from the defendant E. I. Townsend of one-third, together with a deed of the other two defendants.

Moreover, it appeared that in 1890 and 1892 conveyances were made of the realty by the said defendant E. I. Townsend as such executor to his brother Charles, from the latter to Hoffer, and from Hoffer to the said E. I. Townsend, individually; but that in a partition action brought by a sister of these defendants it was adjudged in 1895 that the conveyances were void; that the lands were estate lands, and the executor was directed to sell them under his testamentary power. There was no proof that this judgment was ever reversed or modified. This judgment is binding on the defendants. (Earle v. Earle, 173 N. Y. 487.)

The jury found specifically as follows: “ We find for the plaintiff one hundred dollars, the money paid by plaintiff to defendants as a deposit, with interest from December 12th, 1908, to date; fifty dollars for the architect’s plans and one hundred dollars for counsel fee.” I see no error in these items of nominal damages save as to that for architect’s plans. The defendants challenged the propriety of this item by exception to the instruction to the jury, and by a request for an instruction as well. The learned counsel for the respondent concedes that generally such outlay could not be recovered, but he insists that it is recoverable in this action because the plaintiff proved that as a part of his contract he was required to erect a house upon the premises within a year. There is proof of the understanding that if the plaintiff built a house upon the realty within a year the defendants would return $100 of the purchase price. Even giving this understanding the force of an agreement, there is no proof that it required or justified the plaintiff in an outlay previous to his acquisition of the title. The general rule is that expenditure by the purchaser for improvements, while he is uncertain about his title, cannot be recovered. (Maupin Marketable Title to Real Estate, 224; Walton v. Meeks, 120 N. Y. 79 ; Chamberlain v. Brady, 49 N. Y. Super. Ct. 484.) Even though the defendants knew that the purchaser had employed the architect to-prepare plans, unless such employment was required at such time perforce of the contract of sale, that circumstance would not cast liability upon the defendants.

The judgment and order must be reversed and a new trial must be ordered, costs to abide the event, unless within twenty days plaintiff consent to a modification of the judgment by deduction of the fifty dollars for architect’s plans, in which case, as so modified, it is affirmed, but without costs.

Burr, Carr, Woodward and Rich, JJ., concurred.

Judgment and order of the County Court of Rockland county reversed and new trial ordered, costs to abide the event, unless within twenty days plaintiff consents to a modification of the judgment by deduction of the fifty dollars for architect’s plans, in which case, as so modified, it is affirmed, but without costs.  