Thompson v. Simpson

• Citation: 128 N.Y. 270,28 N.E. 627
• Parties: THOMPSON et al. v. SIMPSON et al.
• Decision Date: 06 October 1891
• Court: New York Court of Appeals

128 N.Y. 270

28 N.E. 627

THOMPSON et al.

v.SIMPSON et al.

Court of Appeals of New York.

Oct. 6, 1891.

Appeal from supreme court, general term, first department.

Action by Ambrose Thompson and others against John B. Simpson and another, as executors, to recover land. Judgment for defendants. Plaintiffs appeal. Affirmed.

James R. Cox, for appellants.

Calvin Frost and R. L. Sweezy, for respondents.

ANDREWS, J.

The title to the lot on Hudson street in the city of New York, the subject of this action, vested in 1837, on the death of Evelina Hammond, in her daughter Mary Evelina Thompson, wife of Ambrose W. Thompson, in fee, and upon her death, in 1845, descended to their five infant children, one son and four daughters, subject to the life-estate of her husband as tenant by the curtesy, who survived her, and who died in 1882. Ambrose W. Thompson, in 1847, about two years after the death of his first wife, intermarried with Mary Ewing Ritchie, his second wife, she having the same baptismal name and the same middle initial as the deceased wife, both being by marriage Mary E. Thompson. This action was brought in 1887, by the surviving children of Mary Evelina Thompson, and the representatives of the deceased children, against the defendants, to recover possession of the premises under the title derived from Mary Elvina Thompson. The defendants claim title to the lot under a warranty deed executed by Ambrose W. Thompson (the father) and Mary E. Thompson, his second wife, to John H. Glover and his wife, Helen L. Glover, in April, 1853. The consideration of the conveyance to the Glovers was $10,000, the full value of the fee, which was paid by the grantees to Ambrose W. Thompson. A manifest fraud was perpetrated on the Glovers by him. They purchased in good faith, supposing that Mary E. Thompson named in the deed was the same Mary E. Thompson who in 1837 had inherited the lot from her mother, Evelina Hammond. Ambrose W. Thompson informed them at the time of the purchase that Mary E. Thompson named in the deed was the sole surviving child of Evelina Hammond, and that the property belonged to his wife, and in the deed the devolution of the title on Mary Evelina Thompson was recited. The Glovers took possession under the deed, and in 1857 they erected a new brick building on the lot, at an expense of $16,000, and in 1858 conveyed the lot to one Smith for the consideration of $28,000, whose executors in March, 1882, conveyed it to John B. Simpson, the defendants' testator, for $32,000, who subsequently thereto, but at what time does not appear, expended a sum exceeding $3,000 in improvements on the property. Neither the Glovers nor any of their vendees had any notice or suspicion of the fraud of Ambrose W. Thompson, or of any defect in their title, until about the time of the commencement of this action. In 1853, when the deed to the Glovers was executed, Ambrose Thompson, the eldest child of Ambrose W. Thompson and Mary Evelina Thompson, was an infant of the age of 16 years, and the youngest child was of the age of 8 years. They then had no knowledge of the deed.

It is evident from these conceded facts that the Glovers acquired under the deed from Ambrose W. Thompson and his second wife only the life-estate of Ambrose W. Thompson in the lot in question, and that the title in fee of his children, subject only to the life estate of the father, was unaffected by the fraud committed on his grantees. No conveyance made by the father could impair their title. The Glovers, as the result of the transaction, were defrauded out of their money by Ambrose W. Thompson, except to the extent of the value of his life estate, and the deed to the Glovers was no obstacle to the recovery by the children of their inheritance on the termination of the life-estate of their father. They have never parted with their title by any deed or conveyance. But it is claimed that by reason of certain facts, which will be stated, the Glovers and those who have succeeded to their title have retrieved their loss, and have acquired an equitable title to the lot in fee, which they are entitled to enforce against the children, in whom the legal title was and is indisputably vested; and this not withstanding the statute of frauds, which requires a deed or conveyance in writing to pass a freehold interest in lands, except in cases not now material to be noticed. 2 Rev. St. p. 135, § 6. What disposition was made by Ambrose W. Thompson of the consideration received form the Glovers does not distinctly appear. It is claimed by the defendants that he used it in the purchase of a house and lot on Murray Hill, in the city of New York. The claim rests upon very vague evidence. It was shown that in September, 1857, Ambrose W. Thompson had title to a house and lot on Murray Hill, but there is no evidence when he acquired it. In that year he exchanged this house and lot with John A. Dix for property in Rye, Westchester county, the Rye property being estimated in the exchange at the value of $25,000. Dix took the Murray Hill house and lot at the price of $10,000, (the same amount for which Thompson had sold the Hudson-Street lot,) and at the request of Ambrose W. Thompson conveyed the Rye property to his son, Ambrose, taking back from the latter a mortgage of $15,000, the sum remaining due to him on the exchange. In the same month Ambrose W. Thompson procured a declaration of trust to be prepared by his attorneys and caused it to be executed by the son, which was recorded in Westchestercounty September 26, 1857, at the same time with the deed from Dix. This declaration of trust is an important document in the case. It recites the ownership by Mary Evelina Thompson at the time of her death, in 1845, of a certain house and lot in Hudson street, (without describing it,) and then proceeds as follows: ‘And whereas, the said Ambrose W. Thompson has since the death of his said wife caused the said real estate and premises to be sold and conveyed, and then received, and has since held, used, and controlled, the purchase money thereof upon the distinct understanding, declaration, and agreement that he held the same for the use and benefit of Ambrose Thompson, Emily Thompson, Mary Thompson, Margaret H. Thompson, and Julia Thompson, children of the said Ambrose Thompson and Mary Evelina, his wife, to whom said house and lot descended on the death of their said mother, Mary Evelina; and whereas, the said Ambrose W. Thompson afterwards became seised of a certain dwelling-house on Madison avenue in the city of New York, which house and lot he hath lately sold and conveyed to John A. Dix, of the town of Rye, Westchester county, in exchange for certain lands and premises described as follows, [describing them,] and the said Ambrose W. Thompson hath caused the conveyance of [the Rye property] to be executed by the said John A. Dix and Catharine Morgan, his wife, to one Ambrose Thompson, by warranty deed in fee-simple, bearing date the 15th day of August, 1857; and whereas, the sole purpose of such conveyance to me was to protect and secure to the said children of said Ambrose W. Thompson and Mary Evelina, his wife, the use and enjoyment of an amount of property equal to that left them by their said mother, as aforesaid, and to that end that I should hold and become seised of said lands and premises in trust for myself and the said Emily, Mary, Margaret H., and Julia, etc., and to carry such purpose into effect, I have promised and agreed to hold the same upon the said trust, and have accepted said deed and taken possession of the said premises as such trustee: Now, therefore, I, the said Ambrose Thompson, do hereby declare, signify, and agree to and with the said Ambrose W., and the said Emily, Mary, Margaret H., and Julia, that I and my heirs and assigns do, shall, and will from henceforth stand seised and possessed of the said above-described lands and premises, so as aforesaid conveyed by John A. Dix and Catharine Morgan, his wife, to me, in trust for the use and benefit of myself and the said [four sisters,] and of our heirs and assigns forever. And I do also agree and covenant to pay over to them, the said Emily, Mary, Margaret H., and Julia, the proceeds of the said lands and premises, until the youngest of them shall arrive at the age of twenty-one years, at which time, or such earlier time as may be proper, I will convey the same to them, their heirs and assigns, in fee-simple,’ etc. When this declaration of trust was made, Ambrose Thompson, who executed it, was under 21 years of age. The father, at the time, as the evidence tends to show, was insolvent, and pressed with debts. He directed the entire transaction,-the conveyance from Dix to the son, and the execution by him of the declaration of trust. It does not appear that the sisters of Ambrose knew of the declaration of trust at the time, or that they ever at any time saw it, nor does it appear that any of the children were then cognizant of the circumstances of the conveyance of the Hudson-Street lot to the Glovers. The declaration of trust recites that Ambrose W. Thompson ‘had caused the lot to be sold.’ The natural inference which would be drawn from the recital by one unacquainted with the circumstances would be that by due authority of the court or otherwise the father had conveyed the interest of his infant children.

The trial judge, in directing a verdict for the defendants, found that the consideration received by Ambrose Thompson on the sale of the Hudson-Street lot went into the purchase of the Murray Hill lot, and finally into the Rye property. It is said that the recital in the declaration of trust warrants this inference, although the fact is not directly asserted therein. It is also insisted that the children knew this to be the fact. One Tuthill, who had been employed by Dix as a gardener on the Rye property, and who remained on the place for two or three weeks after the Thompson family came...