
    Theresia Binzen, Appellant, v. Simon Epstein and Others, Respondents.
    
      Ma/rhetdble title — lands sold by executors for a nominal consideration —right to object cured by lapse of time.-
    
    In an action brought to compel the specific performance of a contract for the sale of real estate, it appeared that" John L. Milledoler, who held the legal title to the whole and the equitable title to one-half of the property in question, executed a will by which he empowered his executrix and executor to sell his real estate and to .give one.sixth of the proceeds (that is, one-twelfth of the proceeds of the entire property) to Helen S. Milledoier and Walter G. Milledoler. December 19, 1853, Charles H. Thompson and Cornelia Graham, the executor "and executrix named in the will, united with others in a conveyance of certain lots to Margaret Ann Brett. June 39, 1854, Margaret Ann Brett conveyed the same premises to Cornelia Graham. The conveyance to Margaret Ann Brett and from her to Mrs. Graham recited a nominal consideration.
    At the time of" the conveyances Helen S. Milledoler and Walter G. Milledoler were infants over the age of fourteen years and of sound mind:
    Upon the accounting in the Surrogate’s Court of Charles H. Thompson, as executor, one-twelfth of the: proceeds of the property was accounted for as money due to each of the infants, allowance being made to them for their interest in the land, conveyed for a nominal consideration to Mrs. Graham at the' same valuation as that at which the other lots had been sold.
    
      Walter <3. Milledoler subsequently executed a conveyance to Mrs. Graham of whatever interest he had in the premises; but Helen S. Milledoler never did, and died in 1891, leaving five children surviving her.
    
      Meld, that although there might have been a technically defective execution of the power of sale, conferred by the will of John L. Milledoler, the infants’ interest in the land having been accounted for by his executor, specific performance of the contract should have been decreed; .
    That even if no consideration was paid for the conveyance of the infants’ interest in the land conveyed to Mrs. Graham, the two infants having attained their majority about 1861, and no attack upon Mrs. Graham’s title having been made by them or either of them, or any one claiming.under them, for forty years, the . title had become perfect by lapse of time.
    Appeal by the plaintiff, Theresia Binzen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of November, 1900, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.
    
      Charles F. Brown, for the appellant.
    
      H. II. SnedeJcer, for the respondents.
   Patterson, J.:

From a judgment dismissing the complaint in an action for the specific performance of a contract for the sale of land and in favor of the defendant upon a counterclaim for a deposit made at the time the contract was entered into, and for the expenses of searching the title of the premises, the subject of the contract, the plaintiff appeals.

The complaint contains the ordinary allegations appropriate to such an action, and the substantial defense interposed is that the plaintiff eould not convey a good title in fee as required by the contract, or could not convey a marketable title to the whole of the premises. The alleged specific objection to the plaintiff’s title pointed out by the defendant is that a deed from the plaintiff would not pass in fee a one-sixth interest in the land by reason of the defective execution of a power of sale contained in the will of one John L. Milledoler, who died in the year 1853. Tire case was tried at Special Term upon a stipulation as to the material facts, supplemented by record evidence fi’oni the Surrogate’s Court in the county of Kings. From the stipulation it appears that on the 23d of April, 1852, Philip Milledoler and wife conveyed to John L. Milledoler, their son, 305 lots of land, as designated upon a map of property in the twelfth ward of the city of New York, in that part of the city then known as Harlem. Upon receiving the legal title to these lots, John L. Milledoler executed a declaration of trust in which he declared that the conveyance made to him by his parents, although in form absolute,- was nevertheless received by him in trust to make sale of the property and to divide the proceeds after the payment of a stipulated sum to his father, in the following manner : One-half to himself ; one-quarter to his sister Susan Ann, the wife of Martin W. Brett, and the remaining one-quarter to his sister Cornelia, wife of John H. Graham. In the same declaration of trust it is recited that part of the property. conveyed had already been sold at two public auctions. It further appears by the stipulation that John L. Milledoler died in May, 1853, leaving a last will and testament by which he appointed Mrs. Graham, his sister, executrix and Charles H. Thompson executor thereof. In' the will appears the following clause: “ I will and ordain that my executor and executrix of this my last will and testament, or his and her executor or executors, for arid' towards the performance of my said testanient, shall, so soon as practicable after iny decease, but without detriment, bargain, sell" and’alien in fee simple all those certain lots of land situate, lying añd being at Harlein' in tile city of New York, of which I stand fully seized'at'the-time "of my death, and the amount of money which shall arise and accrue from the sales of such lots of land I do give"' arid bequeath" untó'the following named persons in the following portions: ” The testator then proceeds to give one-third of the amount' absolutely to his sistér, Mrs. Graham ; another third to his' sister, Mrs. Brett; the remaining third to his niece, Helen S. Milledoléf, and his nephew, Walter G. Milledoler, to be equally divided between them — the share of Walter G. Milledoler to'be subjé'ct to á condition which is now unimportant. After the death of John E. Milledoler and in December, 1853, Bosewell Graves was appointed in the place of John L. Milledoler, trustee of the trust above mentioned. ■

It will be observed that under the terms of the will of. John L. JVIilledoler no title to the land vested in' his sisters or nephew or niece. They were to take as legatees under the execution of the power of sale the land descending to the heirs at law, subject to the execution of the power. The interests of the parties at this time were as follows -: Under the declaration of trust, Cornelia Graham was entitled to one-fourth of the whole, or three-twelfths; as heir at law, one-third of one-half, or two-twelfths. Susan A. Brett, under the declaration of trust, three-twelfths; as heir at law, two-twelfths. Helen S. JVIilledoler and Walter G. JVIilledoler, each one-twelfth, or one-third of one-half, together being two-twelfths, making in all twelve-twelfths.

On December 19, 1853, Graves, trustee, Thompson, executor, Susan A. Brett, Cornelia Graham, and their respective husbands, conveyed twenty-seven of the lots embraced in the declaration of trust to JVIargaret Ann Brett. On June 29,1854, Margaret A. Brett conveyed the lots to Cornelia Graham-. The premises embraced in the contract of sale in this action are included in the, last-mentioned conveyance. At that time Helen S. Milledoler and Walter G. Milledoler were infants over the age of fourteen years, and, as the stipulation shows, of sound mind. The conveyances to Margaret Ann Brett and from her to Mrs. Graham are for a nominal consideration. It appears that Walter G. Milledoler made a conveyance to Augusta C. Graham, and if he had any interest in the premises it passed by that conveyance. Helen S. Milledoler lived until the year 1891, when she died leaving five children her surviving.

It is now claimed by the defendant that there was an imperfect execution of the power of sale contained in the will of John L. Milledoler; that the conveyance, to Margaret Ann Brett and from her to Mrs. Graham for a nominal consideration in both instances was evidently only a method of putting the title to the premises in Mrs.-Graham, and, therefore, there was never a valid execution of the power of sale, and that Mrs. Graham, the executrix, taking the title of the infants in that manner and without the payment of an actual valuable consideration, a presumption of bad faith is raised, and that it is still open to the nephew and niece of John L. Miiledoler or their successors in interest or representatives to avoid the conveyance to Mrs. Graham.

Although there may have been a technical defective execution of the power of sale, yet it is made to appear by record evidence that the legacies intended by the testator, John L. Milled oler, for his nephew and niece were provided for and presumptively paid by the' executor of his will. There is no doubtful or disputable matter of fact depending upon testimony of witnesses which can be assigned as a reason for declaring the plaintiff’s title unmarketable.

How many lots remained unsold in May, 1854, does not appear, but on or prior to May 17, 1854, sixty-five lots had been sold for which a net sum of $18,506 has been received by Thompson, executor of John L. Milledoler. On May 10, 1854, twenty-seven unsold lots were conveyed to Mrs. Graham and twenty-nine to Mrs. Brett. The infants were entitled to an undivided one-twelfth interest in the proceeds of the lots thus conveyed.;

. It is claimed by the plaintiff, and we think shown by the evidence, that the value of the interest of the infants in proceeds that might have arisen from a sale of the lots conveyed to Mrs. Graham, was secured to- them by crediting to them an amount deducted from the share of Mrs. Graham in the proceeds of the land sold for cash,; the value of the land conveyed to Mrs. Graham being fixed at the price received by the executor on the cash sales made almost contemporaneously with the conveyance to Mrs. Graham. If the proof sustains this claim, then it. is apparent that the infants’ interest was paid for. There was admitted in evidence a decree of the surrogate of the county of Kings made upon an accounting of Thompson, exécutor. The account settled by that decree is of the proceeds in cash of the lots sold and conveyed to others than Mrs. Brett and Mrs. Graham, and it shows that one-twelftli interest in the proceeds of the sale of the sixty-five lots was. taken out of the share of Mrs. Graham and was accounted for as part of moneys due to the infants. This seems to result indisputably from the account as settled by the surrogate’s decree. Mrs. Graham’s full share according to the interest she had in the moneys accounted for. by the executor, was -five-twelfths. By the decree as settled she received one-third or four-twelfths, and Mrs. Brett, who was entitled to five-twelfths, was credited with only one-third or four-twelfths, ■ and ^the amounts deducted from their shares were transferred in enhancement of those of the infants, and are a little in excess of the shares which would have been received' by the infants had the lots conveyed to Mrs. Graham and Mrs. Brett been actually sold for cash at the same rate at which the sixty-five lots were sold at about the same time.

It is intimated in the opinion of the court below, and it is suggested on this appeal, that there is nothing to show that the moneys credited to the infants in the executor’s account in excess of what they were actually entitled to, resulted from the transfer of lands to the executrix.. But we think it follows from the very nature and statement of the account itself, in connection with the stipulated facts, that the allowance to the infants could not have been for any other reason or object than to pay them for their interest in the lots conveyed to Mrs. Graham and her sister.

From the record evidence thus made, it appears that the interest of the infants in the lands conveyed to Mrs. Graham was bought and paid for. ' The executor’s account was settled by the decree, and, therefore, the infants’ money was held by the executor. The decree of the surrogate was binding upon all persons who were duly cited. Only a portion of the decree is printed in the record, and while the Surrogate’s Court is one of limited jurisdiction, doubtless that.court acquired jurisdiction over the infants in the proceeding for the executor’s accounting. We must assume as much in this case, because the portion of the decree relating to the accounting came into the case without objection, and its admission in evidence trader such circumstances presupposes the existence of jurisdictional facts which would make it competent evidence.

But if our conclusions above referred to concerning a consideration being paid for the infants’ interest are incorrect, we are of the opinion that the conveyance to Mrs. Graham of the infants’ interest became indefeasible by lapse of time. That conveyance was made in 1854; the two infants then being over fourteen years of age, attained their majority about 1861. ' For forty years no attack has been made upon Mrs. Graham’s title by them or either of them, Qian y one claiming under them or either of them.

In this phase we think the case falls within the principle upon which were decided the cases of Harrington v. Erie County Savings Bank (101 N. Y. 258) ; Kahn v. Chapin (152 id. 305), and Strauss v. Bendheim (162 id. 469).

We do not regard this as a case in which there is a defect which can be cured only by a resort to parol evidence, or in which there is a chance that some person may raise a question affecting the title, or. a doubtful question of law, in the absence of some one in whom an outstanding right is vested. •

The judgment should be reversed and, as it is evident that the facts cannot be changed upon another trial, judgment in favor of the plaintiff requiring specific performance of the contract by the defendant should be entered, with costs;

Van Brunt, P. J., Rumsey, Ingraham and Hatch, JJ., concurred.

Judgment reversed and judgment ordered for plaintiff, with'costs.  