Opinion
November Term, 1902.
Judgment affirmed, with costs, on the opinion of Mr. Justice Wilmot M. Smith at Special Term. All concurred. The following is the opinion delivered by Smith, J., at Special Term:
That the deed of the trustee to Sarah A. Storm is void as against the interests of the contingent remaindermen has been already decided in the case of Storm v. Remsen ( 11 App. Div. 630; 160 N.Y. 693). The children of Harmin V. Storm had vested estates in remainder in the premises attempted to be conveyed by the trustee to their mother, and such estates were alienable by them. They asked to have their conveyance to their mother set aside on the ground that it was delivered without authority. This contention has but little support in the evidence; they are intelligent people; the whole matter was thoroughly explained to them; it was the desire of the whole family that the mother should have the title to the property, and it is incredible that their deed to her was recorded and acted upon after it was executed and acknowledged by them without their consent. The deed of their interests was duly executed, acknowledged, delivered and recorded, and should not be set aside. The deed of Harmin V. Storm to his wife was ineffective because he has no estate in the property attempted to be conveyed by him. It is claimed that he is estopped from attacking the conveyance of the trusts to his wife because the release executed by him to the trustees was an inducement to him to make a conveyance. The deed having been made under contravention of the trust was absolutely void against Harmin V. Storm. I do not think the statute should be nullified by making the deed unassailable under the doctrine of estoppel. ( Matter of Brennan, 21 App. Div. 236.) The only remaining question is what are the rights of the mortgagees in the premises. Their money was advanced in good faith and was used in improving and protecting the property and the estate, and to a certain extent saving and increasing the value of the property. Under well-established rules of equity, I think the interest of the cestui que trust and contingent remaindermen are subject to an equitable lien in favor of the mortgagees for moneys advanced by them to preserve and permanently improve the property and enhance its value. ( Thomas v. Evans, 105 N.Y. 601.) Judgment in accordance with this memorandum to be settled on five days' notice.