Thomas v. Evans

• Decision Date: 07 June 1887
• Citation: 12 N.E. 571,105 N.Y. 601
• Parties: THOMAS and another v. EVANS and others.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 601

12 N.E. 571

THOMAS and another

v.EVANS and others.¹

Court of Appeals of New York.

June 7, 1887.

Appeal from general term, Second department.

George H. Starr, for appellants.

Wm. G. Cooke and Wm. C. Wallace, for respondents.

RUGER, C. J.

In July, 1841, Thomas Thomas died, leaving him surviving Catharine Thomas, his widow, and four children, aged, respectively, three, five, and six, and Sarah Thomas, who has since died intestate. At the time of his death, Thomas owned in fee eight small city lots in Williamsburg, six of which were situated on South First, and two, of lesser value, on South Second streets, and, with the exception of two lots on South First street, were vacant and unimproved. So far as appears from the case, Thomas had no other property, real or personal, and such as he had he devised to his widow for life, with remainder to his four children. By the will he appointed his wife executrix, and John L. Bulkley executor, of his estate, and authorized them to ‘sell the whole or any part of his real estate when they may deem best for those interested therein, either at public or private sale, and invest the proceeds in bonds and mortgages or other securities as they may believe best.’ He also appointed his wife guardian of all of his children. In December, 1841, the widow intermarried with the defendant Evans, and lived with him as his wife until the year 1878, a period of 37 years, and nearly 20 years after all of the children had arrived at maturity.

It is conceded that, by the will, the widow took a life-estate in the property of her husband, and that, upon her marriage with Evans, he became entitled to the enjoyment of her interest therein, and that the four children took a vested estate in remainder in such property. Between the years 1841 and 1850 the defendant Evans made considerable improvements upon the property on South First street, and rendered some of it productive which before was a burden and expense to the estate. For the purpose partly of paying the liability of the estate to Evans for these improvements, and partly to raise money to meet anticipated assessments upon the property, the executors, in 1850, sold and conveyed to Evans, for the agreed price of $1,000, the two vacant lots on South Second street. Three hundred and fifty dollars of this sum was applied as a payment to Evans for the expenses incurred by him, and the balance of $650 was secured by a mortgage upon the property given by Evans to the executors. The price paid was a fair consideration for the land, and all parties then supposed that Evans acquired a valid title under the power of sale contained in the will. Subsequently, however, upon attempting to raise money upon the lots for building purposes, Evans was advised that, by reason of his relationship with one of the grantors, his title was defective, and thereupon he consented to institute an action to have such title declared void, and to reinstate the power of sale in the executors. Such proceedings were thereupon had in the supreme court that judgment was rendered declaring the conveyance from the executors to Evans null and void, and reinstating them with the interest attempted to be conveyed.

Between 1850 and 1854, heavy assessments were levied upon the property of the estate for municipal improvements, and the executors had no means to pay them. These assessments were mainly levied upon the lots on South First street. At the request of the executors, Evans advanced some money to pay them, but the estate was still unable to meet the other burdens upon the property. Under the circumstances, the defendant Evans, under an agreement with one Swackhamer that he would repurchase the property, and repay him its cost, and such money as he should expend upon it, with a bonus of $500 for his risk and trouble, induced Swackhamer to enter into a contract of purchase of the two lots on South Second street with the executors for the price of $2,000. In 1853 the executors conveyed the property to Swackhamer, receiving therefor $300 in cash, Swackhamer's note for $700, and a release by Evans to the executors of their indebtedness to him for money advanced and expended for assessments and improvements upon the property. The price paid was more than the value of the property, and the Thomas estate received the full benefit thereof. It does not appear that the executors had any knowledge of the agreement between Evans and Swackhamer, or that any of the parties had any doubt but that Swackhamer acquired a valid title to the property by the conveyance. Upon receiving his deed, Swackhamer executed a mortgage upon the property to third parties for the sum of $4,500, which sum was wholly expended in erecting three substantial brick dwellings upon the two lots. In 1856, in accordance with his agreement with Evans, Swackhamer conveyed the property to him receiving in payment therefor the sum of upwards of $7,000. Immediately upon receiving his deed, Evans caused it to be placed upon record, and from that time forward claimed to be the absolute owner of the property. Since Evans' occupation of the lots, he has continued to make additions to and improvements upon them, the value of which, including the original cost of the houses as found by the trial court, exceeded $9,000 at the time of the trial. In 1879, Evans conveyed to each of the two other defendants, Catharine J. Scofield and Jessie E. Scofield, one of the houses erected on the two lots on South Second street as a gift out of consideration of love and affection for them as his daughters.

This action was brought by two of the remaining children of Thomas, the other one refusing to join therein as a plaintiff, in April, 1881, for the purpose of vacating and annulling the deed given by the executors to Swackhamer, and all subsequent conveyances of the property, and having it adjudged that the two lots, with their improvements, were the property of the plaintiffs, and requiring the defendants to release and convey the property to them, and that the defendant Thomas J. Evans render an account of all of his transactions with the estate of Thomas Thomas, and be decreed to pay to the plaintiffs such sums as might be found due upon such accounting. The right to relief was based exclusively upon the allegation in the complaint that the defendant Evans obtained title to the property from the executors ‘for the purpose of enabling the executors more conveniently to manage the said estate through the defendant Thomas J. Evans, and with a view to increase the revenue for the said real estate, and to put the title thereof in the said Thomas J. Evans as trustee for the said Catharine Evans, and the children of the said Thomas Thomas, deceased.’ Upon the trial no proof was offered by the plaintiffs of the existence of the trust and agreement alleged in the complaint, but the action was sustained upon the ground that the conveyance by which the land was transferred from the executors of Thomas to Swackhamer was not a valid exercise of the power of sale given to them by the will of Thomas, and constituted a cloud upon the title of the true owners, which should be removed. The decree also denied to the defendant the right to compensation for the improvements made to the property by him. The ground upon which this conclusion was reached, is stated to be that Evans was not a bona fide purchaser of the premises. This conclusion was based upon the finding of law made by the trial court that neither Evans nor the other defendants were bona fide purchasers of the land.

It is not entirely clear what the trial court meant by this finding of law; but, if it was intended to convey any other idea than that it was simply a legal deduction from the assumed fact that the conveyances to Swackhamer and Evans were void by reason of the alleged invalidity in the execution of the power of sale, it is contrary to the findings of fact made by the court, and is unsupported by any evidence in the case. It was found by the trial court that from 1856 Evans always claimed to be the absolute owner of the property; and that this claim was known to and acquiesced in by the plaintiffs appears from the allegations of the complaint. It is therein averred that ‘the plaintiffs have all been for many years of full age, and have not requested the transfer of said title to them because of the positive assurance they all had from the said defendant, and from the said testatrix in her life-time, that the same was held for the estate, and because their mother, the said testatrix, was entitled to the income of the same until her death.’ This excuse, so far as it alleges any assurance from the defendant Evans, or his wife, of the existence of a trust, is not, as we have seen, supported by the evidence. It also appears that some, if not all, of the surviving children of Thomas, after their majority, had knowledge of the expenditures that the defendant Evans made, not only upon the property in dispute, but also upon the other real estate remaining unsold, and, so far from making any objection thereto, actually requested them to be made.

A careful perusal of the evidence in the case shows us that Evans, in the right of his wife, came into the possession of the eight lots in 1841; and, although both he and the estate were destitute of means to improve it, or to pay the taxes or assessments levied thereon, it was so managed as to make it more valuable and productive, and to preserve for the remainder-men the greater part of the estate. In the meanwhile he provided a home for the widow and children of Thomas, and educated and supported the children, not only until their majority, but some of...