Robertson v. Sayre

• Decision Date: 31 May 1892
• Citation: 31 N.E. 250,134 N.Y. 97
• Parties: ROBERTSON et al. v. SAYRE.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 97

31 N.E. 250

ROBERTSON et al.

v.SAYRE.

Court of Appeals of New York, Second Division.

May 31, 1892.

Appeal from supreme court, general term, first department.

Action for an accounting by Edward A. Robertson and others against Lewis S. Sayre. From a judgment of the general term, which affirmed a judgment dismissing the complaint on the merits, entered on the decision of a referee, plaintiffs appeal. Affirmed.

V. Van Dycke, for appellants.

B. D. Penfield, for respondent.

The other facts fully appear in the following statement by FOLLETT, C. J.:

In January, 1841, David H. Robertson purchased, in the name of Thomas H. H. Messenger, at a mortgage foreclosure sale, two lots in Harlem, for $50. January 18, 1841, the master in chancery conveyed the premises to Messenger by a deed which was recorded January 19, 1841. Robertson made the purchase, took the deed, procured it to be recorded, and paid the consideration, $50, without the knowledge or authority of the grantee. Before the transaction Robertson and Messenger had been friends, but no business relations had existed between them. Shortly after the deed was recorded Robertson informed Messenger of the transaction, who was greatly offended, and their previous friendly relations were severed, and so continued until the death of Robertson, which occurred May 2, 1851. The referee found that at the time of the purchase Robertson was financially embarrassed, and that the purchase was made and the deed taken in the name of Messenger for the purpose of hindering and delaying the creditors of Robertson. Neither Robertson nor Messenger took possession of said lots, nor did either pay the taxes thereon, or exercise any acts of ownership; and the plaintiffs, who are the heirs at law of Robertson, have never been in possession of the premises, or exercised acts of ownership over them. November 25, 1881, Messenger conveyed the two lots to the defendant by a quitclaim deed which was duly recorded July 14, 1883. Messenger had forgotten the fact that these lots had been conveyed to him, but, on being reminded of it, said that he supposed he had no valuable interest in them, because he supposed they had been eaten up by and sold for taxes during the period of 40 years. The defendant represented to Messenger that he had some interest in the property; but what representation was made, or whether it was true or false, was not found by the referee, and none of the evidence is contained in the record before the court. The referee found that Messenger knew that David H. Robertson was dead, and that he left children, who were living, but did not know where they resided; and that he conveyed the lots to the defendant upon his oral agreement that, if any of the Robertson heirs should turn up in distress, defendant should help them to the extent of one or two hundred dollars. It was further found that Messenger would have conveyed the premises to the heirs of Robertson upon request, and that at the time they were conveyed to the defendant they were worth about $10,000, but that their value was unknown to Messenger. Since the lots were conveyed to the defendant he has redeemed them from the tax sales, and has paid considerable sums-the amount not appearing-in discharge of the taxes in arrear. The plaintiffs seek an accounting, and that the defendant be compelled to pay to the plaintiffs the value of the lots, less such sums as the defendant may have expended in the payment of taxes and improvements.

FOLLETT, C. J., ( after stating the facts.)

The learned counsel for the plaintiffs insists in his first point that title to the lots was never vested in Messenger, because he says a valid delivery of the deed and an acceptance of it by him were not proved. The plaintiffs are not in a position to raise this question, for they alleged in the fourth division of their complaint that the legal title to the lots in question was in Messenger until he conveyed them to the defendant. This allegation was not controverted by the answer. It was not found as a fact nor as a conclusion of law that there was not a valid delivery of the deed from...