Opinion
March Term, 1901.
Richard W. Brass, Pierre E. Du Bois and Edwin Countryman, for the appellants.
A.V. De Witt and William L. Learned, for the respondent.
We assume for the purposes of this opinion that the trusts created by the deed from Gertrude Treat to John W. Bay of July 5, 1838, were never legally released or abandoned. Under that deed title to the property described therein was vested in the grandchildren of Gertrude Treat subject to the trusts in and by said deed created and also subject to being entirely defeated by the exercise by John W. Bay of the power of sale contained in said trust deed. The defendants in this action were not parties to that trust deed and John W. Bay was not a trustee for them. All of the parties to this action assume that Richard S. Bay and William A. Bay, as well as Anna Bay, had a right to sell and convey their respective reversionary interests in the property in said trust deed described. John W. Bay died in 1877 without having exercised the power of sale contained in that deed. The trusts therein created having ended, title to the several pieces of property in said trust deed described now vests in the legal grantees of the grandchildren of said Gertrude Treat. We assume for the purposes of this opinion that the appellants are right in their contention that William Bay, by virtue of the trust deed from Anna Bay, dated September 15, 1852, and by virtue of the conveyance to him by William A. Bay, dated April 12, 1860, became the owner as such trustee of the whole remainder in fee of the property in controversy. The trust deed to William Bay gave to him not only power to sell for certain express purposes named in the trust deed but also full power to sell the lands and premises therein described and to invest the proceeds thereof as he might think best. That trust deed expressly directed the trustee to invest and reinvest the same from time to time as he should deem expedient and proper. "An instrument executed by the grantee of a power, conveying an estate or creating a charge, which he would have no right to convey or create except by virtue of the power, shall be deemed a valid execution of the power, although the power be not recited or referred to therein." (Real Prop. Law [Laws of 1896, chap. 547], § 155.)
On the 15th day of September, 1860, William Bay, trustee for Mrs. Anna Brass, conveyed to John W. Bay the premises in controversy by warranty deed in which deed is a recital that it is given in consideration of $12,000, the receipt whereof is thereby confessed and acknowledged by the grantor. On the 2d day of June, 1873, John W. Bay by quitclaim deed conveyed the premises in controversy to Anna Stahl. The fact that Anna Stahl had a life interest in the property by virtue of the trust deed to William Bay did not prohibit her from purchasing the remainder. "If one buys the remainder he becomes entitled to it and there never was any reason why a cestui que trust should not purchase the remainder, thereby becoming entitled to it if he saw fit. If he did purchase it he became entitled to it just as much as though it had been devised to him or it had descended to him as an heir at law." ( Mills v. Mills, 50 App. Div. 227.) There is no proof whatever that the plaintiff had any knowledge of the alleged violation of the William Bay trust except so far as the same appears, if at all, by the conveyances received in evidence. There is no evidence whatever that plaintiff ever saw any of these conveyances. If counsel for plaintiff saw the deeds of record which were received in evidence other than those relating to the property in controversy the plaintiff is not bound thereby.
In Bradley v. Walker ( 138 N.Y. 291) the Court of Appeals held that there was no presumption that an agreement relating to the matter in controversy had come to the notice of the person affected thereby from the simple fact that it was actually recorded when the acknowledgment thereof was insufficient to entitle it to record, and the court say: "There is no claim that he had actual notice and no claim that he actually knew of the instrument on record, in the register's office. But it is claimed that he had notice because his counsel had searched the records. It would be going a great way to hold that we must presume that in searching the records, counsel found such an agreement, and then presume further that he communicated the information to his client." Plaintiff had constructive notice only of what appeared by the conveyances relating to the property in controversy. As already stated, appellants contend that William Bay, as trustee for Anna Bay, after the deed to him of April 12, 1860, was the owner of the premises in question subject to being defeated by the exercise of the power of sale by John W. Bay under the Treat trust deed. The only deeds since that time relating to the property in controversy are, the deed from William Bay, as trustee for Anna Bay, to John W. Bay of September 15, 1860; the deed from John W. Bay to Anna Stahl of June 2, 1873, and the deed from William Bay, as trustee for Anna Bay, to Anna Brass of August 29, 1863. These deeds apparently gave to Anna Bay Stahl a good title to the property in controversy. We do not see anything in these deeds that would necessarily lead an honest man using ordinary caution to make inquiry. There is no proof whatever that the consideration named in the deeds from William Bay are not in each case full and adequate. There is nothing in either of those deeds to suggest that the consideration was not paid as the grantor in each of the deeds confessed and acknowledged, and there was no reference in either of these deeds to any other deeds or instruments that required further examination. Anna Stahl was in possession of the property at the time the loan was applied for, and the simple fact that the deed from William Bay, trustee, to John W. Bay had remained unrecorded for a long time is not, apart from other circumstances, of itself a circumstance requiring the plaintiff to make inquiry as to other matters relating thereto, especially as Anna Stahl had a further quitclaim deed of the property from William Bay that recites a consideration that, so far as appears, was full and adequate. The rule applicable to cases of this kind is stated by the Court of Appeals in Kirsch v. Tozier ( 143 N.Y. 397) as follows: "What circumstances will amount to constructive notice or will put a party upon inquiry is in many cases a question of much difficulty. A purchaser is not required to use the utmost circumspection. He is bound to act as an ordinarily prudent and careful man would do under the circumstances. He cannot act in contravention to the dictates of reasonable prudence or refuse to inquire when the propriety of inquiry is naturally suggested by circumstances known to him." Applying the rule so laid down to this case, we are of the opinion that, so far as this particular piece of property is concerned, plaintiff is protected, and the judgment of the court below should be affirmed, with costs.
PARKER, P.J., and SMITH, J., concurred in result; EDWARDS, J., not sitting.
Judgment unanimously affirmed, with costs.