Moore v. Appleby

The will of T. devised a share in certain real estate to G., in trust for the benefit of 0. during life, and upon his death “to assign, transfer and convey the said share” to his child or children, or in case he died leaving no child, then to his heirs-at-law. In an action for partition of said real estate, those entitled to the remainder in said share were not. made parties. Held, that they were not concluded by the judgment, therein; that one claiming under a deed given on sale under said judgment could not give a title, so freed from reasonable doubt, that one under contract to purchase the land could be required to take title; and that an action was maintainable by such vendee to recover back the payment made at the time of entering into the contract, with interest and. expenses incurred in investigating the title. In such an action an additional allowance may not exceed five per cent upon the recovery (Code of Civil Pro. § 3258, sub. 2); the value of the subject-matter, incidentally involved by the nature of the controversy,, is not to be taken into consideration.

These are cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 18, 1885, which modified, so far as an additional allowance for costs was concerned, and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury. (Reported below, 36 Hun, 368.) This action was brought to recover back the portion of the purchase-price paid by plaintiff under a contract between them and defendant for a sale, by the latter of certain premises, situate in the city of Hew York, with interest and expenses incurred in examining title on the ground of a defect in defendant’s title. Defendant claimed under a title acquired upon a sale in a. partition suit. Gideon Tucker died seized in fee of part of the premises. By his will he devised a fourth interest therein to his son Charles. By a codicil the devisee was changed by the following provision: a And all the share, interest, and portion of my •estate, both real and personal, which is in and by said will given, devised, and bequeathed unto my son Charles, I do .give, devise and bequeath unto my son George W., his heirs, executors, administrators and assigns, upon the following trusts, that is to say, to collect, receive, and take into his possession all personal estate belonging or appertaining to such .share, and all the rents, issues and profits of the real estate, part and parcel of such share of my son Charles, and apply .all the rents, profits, etc., of such share to the use of my.son ■Charles during his natural life, and upon his death, leaving .a lawful child or children, to assign, transfer and convey the said share, interest or portion of my said estate, real and personal, unto such, his child or children, their heirs, executors, administrators and assigns, equally to be divided among such children if more than one, and in case my said .son Charles shall die, without leaving any such child or •children, then to convey, assign and transfer such share of my .said estate to the heirs-at-law of my said son Charles.” After the decease of the testator, the executor, in his own right and as trustee for his brother Charles, commenced an action to partition the estate of the testator. But neither of the persons presumptively or actually entitled to take the property in remainder, which was devoted to the objects of the trust, was made a party to the suit in partition. This property, with other parcels of the estate, was purchased by the trustee and others, and a subsequent action for its further partition was afterwards brought between them resulting in a partition and division of the property. In the latter action there was the same omission to make the parties entitled to the remainder in the land in dispute parties to the action, and it was mainly because of these omissions that the plaintiffs refused the title which the defendant offered to convey, to them in fulfillment of the terms of his agreement.