Murphy v. Whitney

• Decision Date: 31 January 1894
• Citation: 35 N.E. 930,140 N.Y. 541
• Parties: MURPHY v. WHITNEY.
• Court: New York Supreme Court

140 N.Y. 541

35 N.E. 930

MURPHY

v.WHITNEY.

Supreme Court, New York County, New York.

January, 1894.

Appeal from a judgment on demurrer.

The complaint in effect alleged that seven children and heirs of Hugh Murphy (plaintiff's grandfather) inherited as tenants in common, their father's lands; and that (they being all of full age) “by a common agreement and understanding between them it was understood and agreed that the said lands and building constructed thereon, were to be held by them as property in common, for the joint use of all, as from time to time they might be living; and on the decease of any of them the interest of such deceased person was to vest in the survivor or survivors for the purpose aforesaid, until the title and interest in the same was and was to be concentrated on the last of such survivors; and that the title and interest of and in said property on the death of the last of such survivors, was to pass to and become vested in the said Hugh Merancy Murphy (plaintiff's father) as the sole representative of the family name and estate of the Murphy family aforesaid; that such transmission of interest and estate was to be made through descent or will as might best serve to accomplish the purpose so agreed upon.”

Further facts appear in the opinion.

EARL, J.

The defendants' demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, having been overruled in the courts below, they have appealed to this court.

The complaint is very verbose and lengthy, occupying more than fifty pages of the printed record. We will not attempt to make a precise or comprehensive abstract of it. It is sufficiently accurate for the present purpose and for the exposition of the principles of law applicable to this case to state that it alleges in substance the following facts: That Hugh Murphy died in the town of Le Roy in this State in 1826, leaving three sons and four daughters, of whom the defendant, Mary Murphy, now about ninety-five years old, is the last survivor; that none of these brothers and sisters was ever married except the father of the plaintiff, who was married in 1837 and died in 1861, leaving the plaintiff his only child and heir-at-law; that plaintiff was born in 1839; that at and after the death of Hugh Murphy his seven children became and were tenants of a farm situated in the village of Le Roy; that they all lived together upon the farm until the marriage of the plaintiff's father, and he some time after his marriage moved to the State of Michigan; that prior to that time they had made valuable improvements upon the farm and had mutually agreed to own the same together as joint tenants, and that upon the death of either the farm should pass by devise or descent to the survivors; that after the birth of the plaintiff, and in or about the year 1857, at a family meeting of all the brothers and sisters, there was a mutual agreement entered into, by parol, as we may assume, by which the prior agreement was re-affirmed, and it was then mutually again agreed that the farm should be owned together, and that as fast as either of them died it should by devise or descent pass to the survivors, and upon the death of the last survivor it should by devise or descent pass to the plaintiff and belong to him; that this agreement was kept and performed by brothers and sisters until by the successive deaths the title became vested in the defendant Mary, the last survivor of them; that the defendants Whitney and Moore came to live in the Murphy family many years before the commencement of this action, and several years before, they commenced by fraud, falsehood, undue influence and coercion to obtain from the defendant Mary conveyances of portions of the real estate to themselves and to others; that the defendant Mary is feeble in body and mind and incompetent to manage her affairs, and that by fraud, artifice, undue influence and coercion they have procured her to convey away all of the real estate, and that they are appropriating the proceeds thereof to themselves; that during all this time they were well aware of the family arrangement and agreement which had been made for the benefit of the plaintiff in reference to the Murphy farm, and that their fraudulent acts were intended and designed to entirely deprive him of the benefit of that agreement; and he asked for relief, among other things, that the conveyances of the real estate made to the defendants Whitney and Moore be set aside and vacated, and that they be required to account for the proceeds of the real estate sold, and that a receiver be appointed, and for other relief.

We think it cannot be said that the complaint, although imperfectly and inartificially drawn, failed to allege a cause of action. It is claimed on the part of the defendants that the agreement alleged in the complaint as to the holding and transmission of the real estate, was against public policy as contravening the statutes against perpetuities (1 R. S. 723, §§ 14 and 15). Section 14 is as follows: “Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this article. Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.” And section 15 is as follows: “The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single instance mentioned in the next section.” This agreement, assuming it to be valid and binding upon the parties, does not violate either of these sections. The absolute power of alienation is not suspended, because there were at all times persons in being who could convey an absolute fee in possession. All the brothers and sisters uniting with the plaintiff could at any time have conveyed a perfect indefeasible title to the real estate. Estates can be rendered inalienable by vesting them in trustees upon some one of the valid trusts mentioned in section 55 of the article upon trusts, so that they become inalienable under section 65 for a period of more than two lives in being at the creation of the trust, or by the creation of future, contingent or expectant estates, so that there are no persons in being during the two lives who can convey a perfect title (Smith v. Edwards, 88 N. Y. 104). Here none of these conditions existed. The agreement did not contemplate that the persons interested were bound to keep and hold the land. It was an agreement for the benefit of all the brothers and sisters and of the plaintiff, and no other persons were interested therein, and if they had all, at any time, united in a sale and conveyance of the land, a perfect title would have passed and no rights under the agreement would have been violated.

It is further claimed on the part of the defendants that the agreement was void under the Statute of Frauds, because not in writing. But here there was part performance sufficient to take the agreement out of the Statute of Frauds. The agreement alleged in the complaint had been substantially kept by all the parties thereto until the land became vested in the defendant Mary, and she had thus been largely benefited by the agreement, and had received all the fruits thereof which were to come to her. She could not, therefore, urge against this agreement that it was void under the Statute of Frauds, because not in writing.

It is no answer to this action, assuming that the plaintiff is able to establish the agreement which he alleges, that the real estate has all been conveyed, and that the title to the farm has thus passed out of the defendant Mary. As the agreement related to land the plaintiff is bound in this action to show that the facts are such that he would have been entitled to maintain the action if the defendant Mary had still retained the land, and having established such a state of facts he can pursue the land in the possession of those who have taken it with knowledge of the agreement; and where the land has been converted into money he has the same right to pursue the proceeds thereof. This is not a case where the plaintiff was bound to pay anything more for the land, or to perform any further act on his part. The defendant Mary, before she made the conveyances of the land, had received the whole consideration which up-holds the plaintiff's rights, and whoever takes and withholds the land or its proceeds from him with knowledge of his rights is in equity just as liable to him as the defendant Mary herself can be; and this is certainly so as against the defendants Whitney and Moore, who are alleged to have obtained the property by fraud and to have paid no consideration therefor.

It is no defense to this action that the time has not yet come when the plaintiff could come into possession of the property under the terms of the agreement. The time had come when, assuming the validity of the agreement, he had a vested remainder in the property, and the right that the defendant Mary had to the real estate or its proceeds...