Sinclair v. Purdy

• Citation: 235 N.Y. 245,139 N.E. 255
• Parties: SINCLAIR v. PURDY et al. MAPES v. COREY et al.
• Decision Date: 06 March 1923
• Court: New York Court of Appeals

235 N.Y. 245

139 N.E. 255

SINCLAIR

v.PURDY et al.

MAPES

v.COREY et al.

Court of Appeals of New York.

March 6, 1923.

Action by Elvira Sinclair against Lydia M. Purdy, Jennie A. Mapes, and others, in which the last-named defendant filed a counterclaim. Judgment dismissing the counterclaim on the merits, and excluding the last-named defendant from any interest in the real property to be partitioned was affirmed by the Appellate Division (202 App. Div. 797,194 N. Y. Supp. 980), and the last-named defendant appeals.

Judgment of Appellate Division and of Special Term reversed, and new trial granted.

See, also, 234 N. Y. 604, 138 N. E. 464.Appeal from Supreme Court, Appellate Division, First Department.

George B. Ackerly, of Brooklyn, and A. H. Parkhurst, of New York City, for appellant.

George H. Corey, of New York City, for respondents.

CARDOZO, J.

The action is partition. Elijah F. Purdy succeeded upon his father's death in or about 1868 to the ownership of an undivided seventh interest in real estate in the city of New York. An equal interest passed to his sister Elvira, and like interests to other brothers and sisters, whose rights are not involved. Elijah was a clerk of what was then known as the Fifth District Court. His ownership of real estate subjected him to constant importunities to go bail for those in trouble. The desire to escape these importunities led him to execute a deed conveying his undivided half interest to his sister Elvira. The conveyance was made during the pendency of an action for the partition of the estate. The judgment in that action, dated February 21, 1871, directed a sale of the property and the payment to Elvira of two-sevenths of the proceeds. By arrangement with Elijah, she bought in two parcels, 337 and 339 East Twenty-Third street, paying the purchase price by offsetting it against her share in the proceeds of partition, for she had not a dollar besides. The record does not make it plain whether at this time brother and sister made their home together. The relation between them in any event was one of harmony and affection, and so continued till the end. Advancing years brought illness and infirmity to the man, and the need of unremitting care. To procure the comforts of a home, he went to live in 1898 with Mrs. Mapes, a niece. An arrangement was made that in return for her care during the rest of his life, he would devise to her his interest in the Twenty-Third street property. There is evidence of repeated declarations by Elvira that, though the title was in her name, a half interest was his. A letter confirmatory of his rights, to which there will be fuller reference later, was excluded upon the trial. Elijah died at the age of 80 in 1914. He left a will, but gave nothing to his niece. Elvira died in 1917. In this action, brought to partition the Twenty-Third street parcels, the niece, Mrs. Mapes, has set up an equitable counterclaim. She asks the judgment of the court establishing a trust in favor of Elijah to the extent of an undivided half, and specific performance of his contract to devise his half to her.

[1] There was a separate trial of the counterclaim upon issues framed by the court for determination by a jury. The jury found, by consent of all parties, that an agreement had been made between Elijah Purdy and Mrs. Mapes to the effect that, in consideration of her care of him, she would receive upon his death his interest in the land in suit. It found performance of the agreement on her part, and fixed the value of her services at $12,000. It found, however, under the direction of the court that Elijah had in fact no interest, legal or equitable, to devise, that Elvira was the sole owner, and that she had not estopped herself either by representations to Mrs. Mapes or otherwise from the assertion of her ownership. The judgment entered upon this verdict was a final adjudication adverse to the appellant's title. Brown v. Feek, 204 N. Y. 238, 97 N. E. 526;Albany Hospital v. Albany Guardian Society and Home for Friendless, 214 N. Y. 435, 108 N. E. 812, Ann. Cas. 1916D, 1195. The Appellate Division affirmed. An appeal to this court followed.

[2] We think the letter of February 20, 1903, was erroneously excluded. Read in the light of the existing situation, it might have been interpreted as a note or memorandum of a trust, sufficient to satisfy the requirements of the statute. Real Prop. Law, § 242; Consol. Laws, c. 50. The letter, signed by Elvira and written to her brother, contains, with other things, the following:

‘Now I want you to fully understand that I would not sign a lease or give a two years' privilege to ‘Mr. Foxey’ without seeing and talking to you first-not much-no siree-why should I? Are you not as much interested in the houses as myself-surely yes-so ‘put that in your pipe and smoke it,’ old chap. Weather is horrid, and while it lasts, won't go to 23d Street.'

We held, in Hutchins v. Van Vechten, 140 N. Y. 115, 35 N. E. 446, that a sufficient memorandum of a trust was to be found in a letter to the effect that anything realized from a sale belonged equally to the writer and to another whom he named. We find little difference in principle between that case and the one at bar. Elvira's statement that her brother had as much interest in the houses as herself might fairly be interpreted by the triors of the facts as an admission that her title was subject to a trust. No doubt the recognition of the trust must be found in the writing, and not elsewhere. The ordinary aids to interpretation, however, are not to be ignored; and probabilities of circumstance and occasion may point or clarify a meaning that might otherwise be doubtful. Marks v. Cowdin, 226 N. Y. 138, 123 N. E. 139. This woman had received a deed of her brother's interest in the land, for which she had paid nothing. She had received it because he wished to put the title in a form where his ownership would be secret. That appears from her own testimony upon an examination before trial. If from such a conveyance without more a trust did not arise, at least the situation was one in which the recognition of a trust became natural and probable. In Elvira's own words, Elijah trusted to her sense of honor. That is the background which gives to the figures in the foreground their position and perspective. We must read the letter in its setting. Thus viewed, its assertion of equality of interest becomes something more than a tribute to brotherly affection. It is the recognition of a right, and the declaration of a duty.

[3] We are told, however, that the sister's memorandum is inadequate because, while referring to the ‘houses,’ it does not otherwise describe them. The record justifies the inference that the houses in controversy were the only ones she owned. She bought them at a time when according to her testimony she had not another dollar in the world. She left no other real estate at her death, as appears by necessary inference from the admissions in the pleadings. She constantly referred to these houses in conversation with her brother, and never, so far as appears, suggested that he had an interest in any others. A witness does, indeed, say that he heard of her owning property at Washington Place-from whom he heard it does not appear-but he admits in the next breath that he had no knowledge on the subject. If such property was owned, and sold before her death, the evidence of the sale could readily have been supplied by those who claimed under her will. Opportunity to prove or to disprove is to be weighed by the triors of the facts in determining the significance of the evidence before them (Matter of Jordan v. Decorative Co., 230 N. Y. 522, 527, 130 N. E. 634). The conclusion that she had nothing else is borne out by other circumstances. A sale would have augmented her personal estate, yet the only personal estate at the time of her death was a trifling balance of $212.54 in the savings bank. These facts, viewed in their collective significance, supply at least some basis for a finding that, at the date of the letter, she was the owner of these houses and no others.

In such conditions, a description that might otherwise be indefinite becomes definite and adequate when applied to the only subject-matter that can reasonably fit it. A leading case is Plant v. Bourne (1897) 2 Ch. 281.

There the description was ‘twenty-four acres of land, freehold, * * * in the parish of Draycott in the county of Stafford.’

The question was whether there was sufficient identification of the subject-matter of the sale. The court held that the vendor was presumably selling his own 24 acres and not another's, and that the description was sufficient to let in extrinsic evidence that he had only 24 acres in the county.

‘The general rule is id certum est quod certum reddi potest, and I am of opinion that this maxim applies here.’ Lindley, J., in Plant v. Bourne, supra.

Many other cases, both in England and in our own country, enforce the same distinction. The description will be rejected as inadequate, if the signer is the owner of two or more parcels, to any one of which it may be applied with equal fitness. It will be accepted as sufficient if he is the owner of only one. Shardlow v. Cotterell, 20 Ch. D. 90; Auerbach v. Nelson (1919) 2 Ch. 383; ...