
    James Reynolds, Respondent, v. Mary E. Condon and Margaret M. Condon, Appellants.
    First Department,
    December 30, 1905.
    Specific performance — -evidence insúfficient to sustain decree of specific performance of Contract to-sell lands. ’ '
    The plaintiff and the defendant, an- owner of real estate, entered into-an executory contract for the sale thereof, part of the consideration being paid. Performance was refused by the defendant, and the plaintiff sued for specific performance. It was shown that the defendant had previously conveyed the premises to her daughter (also made defendant) for a consideration, which was partly paid; that the defendant’s daughter had another title to the premises through mesne conveyance through an uncle, who was not produced as a witness, for which conveyance there was a consideration; that the defendant mother had incumbered the property by a mortgage; that the daughter had no knowledge thereof or of the contract with the plaintiff.
    
      Held, that the evidence was insufficient to sustain a decree for specific performance and that a new trial should be granted.
    As to whether said daughter could be ordered to convey, qumre.
    
    Appeal by the defendants, Mary E. Condon and another, from a judgment of the Supreme Court in favor óf the plaintiff,, entered in the office of the clerk of the county of New York on the 6th day of. July, 1905, upon the decision of the court rendered after a trial at the New York Special Term.
    
      William H. Jackson, for the appellants.
    
      George H. Taylor, Jr., for the respondent.
   Houghton, J.:

On the 3d day of October, 1904, the defendant Mary E. Condon entered into a contract with the plaintiff to sell to him certain real property, and he paid to her thereon $250. Conveyance was to be made and the balance of purchase price paid on the third day of November following. On the ninth of that month the defendant Margaret M. Condon recorded a deed of the same premises, executed by Mary E. Condon to her, and dated October 1, 1902, and acknowledged December twenty-second "following. Defendant Mary defaulted on the day of performance, and refused thereafter to make a conveyance, and the plaintiff brought this action to compel performance joining Margaret therein, alleging that the deed to, her was void and without consideration, and that the contract with plaintiff was made with her knowledge, and asking that she be compelled to join in conveyance to him and release any interest . which she might have in-the property,'if she liad any, and in the event of a specific performance not being decreed, that he. have his judgment against defendant Mary for damages. ' The defendant Mary answered, admitting the making óf the contract, but alleging that the title was not in her at the time; and the defendant Margaret answered, setting up title in herself.

On the trial the defendant Margaret, prod'nc.ed a deed from defendant Mary,, also dated 'the 1st day of October, 1902, acknowledged October 24, 1902, tó one Joseph McDqnough, purporting to convey the premises in question, and a deed from McDonough to herself, dated the 24th day of October, 1902, acknowledged on - the next day, purporting to convey the same premises to'her.

The defendants are mother and .daughter, residing in the same household, the daughter Margaret working at a weekly salary of eight to twelve dollars. McDonough is a brother of defendant Mary and uncle of Margaret, and was not produced upon .the trial as a‘ witness, although it was not shown he was without the State or city.

Notwithstanding the two deeds of October 1, 1902, the defendant Marjq on the 7th of March, 1904, executed a mortgage upon- the premises in question and obtained thereon $1,350.

Margaret testified upon the trial that she knew nothing of the contract for conveyance made by her mother, nor of the mortgage of $1,350, and' that.from her weekly salary she had paid 'a considerable sum of money to her mother on the agreed purchase price.

The trial court concluded that the deeds.from. Mary to McDonough and to Margaret were only deeds in formy and did not in fact pass title to .either of them,' and directed that Mary, specifically perform, and that Margaret join in a conveyance, the form of which was set forth in. the decree. ^ '

. While there are many suspicious circumstances connected with the alleged title of Margaret^ and while it is quite improbable that she did not know that her mother was dealing with the property as her own notwithstanding the deeds, the court is of the opinion that the. evidence was insufficient to justify the finding that the.deeds-to Margaret were void and passed no title to her.,

The deed to McDonough was regular, in form, as Well as the one from him to Margaret; and there was proof, suspicious though it may be, that it was for a consideration - passing from: him to Mary. The same is true of. .the deed from Mary to Margaret, except for ■ the fact that no seal or scroll appears. Whether this omission affects its validity it is unnecessary for us now to determine, for her title.through McDonough is not thus affected.

Title to real property should not be set-aside on mere suspicion. There must be something which the court can lay hold- of to permit it to say that a conveyance valid upon its face was not intended to or did not operate as such. Upon a retrial it is possible that further evidence may be produced, and if not the plaintiff can still have his judgment for damages against defendant Mary.

A serious question is presented as to whether Margaret could be compelled by judgment to join in a conveyance, even though her title was properly adjudged void. She was not a party to any contract to convey. If her deeds passed no title to her they can be set aside and be adjudged to be a nullity, and Mary can be directed to convey. The judgment in such case would disclose the fact that the title had remained in Mary because Margaret had acquired none, and a conveyance' by Mary alone would pass all of the title because Margaret would then be_adjudged never to have acquired any.

The judgment should be reversed and a new trial.granted, with costs to appellants to abide the event.

Ingraham, McLaughlin and Clarke, JJ., concurred; O’Bbien, P. J., concurred in result.

Judgment reversed, new trial granted, costs to appellants to abide évent.  