Downey v. Seib

• Decision Date: 12 June 1906
• Parties: DOWNEY v. SEIB.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 427

78 N.E. 66

DOWNEY

v.SEIB.

Court of Appeals of New York.

June 12, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Submission of controversy on agreed facts by Margaret F. Downey against George Dan Seib. A judgment was directed in favor of defendant by the Appellate Division (92 N. Y. Supp. 431), from which plaintiff appeals. Affirmed.

The controversy arose over the title to land on Jefferson avenue in the borough of Brooklyn through the claim of the defendant that he was not obliged to perform his contract of purchase because the title was not marketable. The history of the title, as set forth by the parties in their agreed statement of facts, is substantially as follows: On the 13th of November, 1889, one John Scott, Sr., who then owned the premises in question, and his wife Ann, conveyed the same to their daughter Margaret, who is the plaintiff in this action, for life, with remainder over to her children living at the time of her death, and the issue of any deceased child, and upon her death without lawful decendants to her brothers, John, James and William Scott, who were parties of the third part, ‘or to the survivors or survivor of them living at the time of the death of the said Margaret and the lawful children and issue, if any, of such of said three sons as may then be dead.’ At the time he executed said conveyance Mr. Scott was worth about $100,000. He had four children, the plaintiff and the three sons already named, who were then his only descendants. Shortly before he gave the deed, being well advanced in years, he told his children at a family consultation that he was about to make a will, and that he intended to give Margaret the house in question, which he had bought for her and in which she then resided. All of the children approved of this plan, whereupon he told the plaintiff that he would convey to her accordingly, and shortly thereafter he informed her that he had done so and had filed the deed for record. Acting on the belief that this was true, she expended a large sum of money in repairing and improving the house and premises. About the 20th of October, 1892, the plaintiff first learned that the deed did not convey the premises to her absolutely and in fee simple, but only for life, with remainder over, as already stated. She at once informed her father of the fact, and he said that he intended to make her an absolute conveyance, but the lawyer who drew the deed had made a mistake, which he would have corrected at once by a new deed. John, James, and William Scott, on learning of the mistake, promptly united in a conveyance of the premises to the plaintiff with full warranty. John Scott, Sr., was ill when the mistake was discovered, and, repidly growing worse, died on the 3th of November, 1892, before he could execute the new deed, as he had promised. The plaintiff was then about 30 years old, and, although she had been married for more than seven years, she had never had any children, and for physical reasons expected none. This fact was known to her father, who in his will, executed after the deed, left her no part of his estate, because he believed that he had already made suitable provision for her by the absolute conveyance of said premises. Early in 1893 the plaintiff herein, alleging the foregoing facts among others in her complaint, commenced an action against her mother, her three brothers, none of whom had then been married, and the executor of her father's will, for a reformation of said deed so as to make it conform to the intention of the parties when it was executed. That action, which was not defended, resulted in a judgment, entered on the 2d of November, 1893, reforming the conveyance from John Scott, Sr., to his daughter by making it absolute in form and directing that the register of Kings county should, by apt and proper words, insert in the margin of the liber where said deed was recorded a reference to such judgment. Said William Scott died before this controversy arose, having never been married. Some years after the rendition of said judgment, John Scott, Jr., and James Scott, sons of John Scott, Sr., married, and their respective wives are living. John has two children, and James one. The plaintiff has no issue, and her husband is still living. She is now 41 years of age, has been married 19 years, and is not likely to become a mother owing to a structural defect in the organs of generation. Upon submitting the controversy the plaintiff demanded judgment that the defendant perform his agreement to purchase said premises and pay her the balance of the purchase money. The defendant demanded judgment that the plaintiff could not convey the premises, as she had agreed, by a good and sufficient deed in fee simple, for a return of the sum of $200 paid on account of the contract of purchase, and the sum of $75 for the reasonable expense of searching the title. The Appellate Division rendered judgment relieving the defendant from his contract, and awarding judgment against the plaintiff for the sum of $275, besides costs. From that judgment the plaintiff appealed to this court.

VENDOR AND PURCHASER-MARKETABLE TITLE-POSSIBLE ISSUE-RIGHTS.

Plaintiff's father conveyed the premises in question to her for life, with remainder to her children living at the time of her death and the issue of any deceased children, and, on her death without lawful descendants, to his sons or the survivor of them and the issue of deceased sons. It was admitted that the father intended to convey the fee, and thereafter the sons who then had living issue executed a deed to plaintiff, who was still childless, purporting to convey the fee. After the conveyance plaintiff sued the sons and her father's widow and executor, and in such suit procured a decree reforming the original deed so that it purported to convey the premises to her in fee. Held, that plaintiff's rights being adverse to the children of the sons and to her own unborn children, neither of which classes of children were represented in the action, they were not concluded by the decree reforming the deed, and hence plaintiff had not a marketable title to the fee.Isidor Wels, for appellant.

Isaac Ringel, for respondent.

VANN, J. (after stating the facts).

John Scott, Sr., probably could not write, for he signed the conveyance in question as a marksman, and perhaps he could not read. At all events, he did not understand that cumbersome and complicated instrument, which, with its parties of the first, second, and third parts, its reversions, remainders, and wealth of technical words, doubtless reflected the learning of the scrivener better than the instructions of the grantor. The unfortunate...