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App. Div.]

Third Department, January, 1906.

Smith Mitchell appointed his wife, Delinda Mitchell, as the sole executrix thereof with full power and authority to sell and dispose of all his real estate and to invest the proceeds in such manner as shall be most for the interest of the estate. Delinda qualified as executrix and served as such up to the time of her death in 1904. Before March 7, 1873, she married one Chancellor Pettigrew. On that day she and her husband joined in a deed conveying the premises in question to one Charles D. Ford for a consideration of $1,100, which was the reasonable market value of the premises at the time of said conveyance. In the deed she described herself as the widow of Smith Mitchell, deceased, and the deed contained the usual covenants of warranty. The premises were thereafter conveyed by several mesne conveyances and were finally conveyed to the defendant Clarke who received and duly recorded her deed on December 3, 1898, and who paid the reasonable market value of said premises at the time of her purchase. The defendant Clarke has been in possession of said premises since said last-named date. The court on the trial dismissed the complaint and the plaintiff appeals from the judgment of dismissal.

Corliss Sheldon, for the appellant.

Edgar T. Brackett and Hiram C. Todd, for the respondent. CHESTER, J.:

While Delinda Pettigrew, as the executrix of her husband's will, was thereby expressly given the absolute power of sale of his real estate, yet in the deed which she gave there is no mention of such power. The question presented for determination, therefore, is whether by such deed she conveyed the entire fee or simply her life estate. Section 124 of title 2 of chapter 1 of part 2 of the Revised Statutes (1 R. S. 737), which was in force when the deed was given, provided that "every instrument executed by the grantee of a power, conveying an estate *, which such grantee would have no right to convey * * * unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein."

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In Mutual Life Ins. Co. v. Shipman (119 N. Y. 324) it was held

Third Department, January, 1903.

[Vol. 111. that the enactment of this provision of the Revised Statutes, which is couched in almost the identical language of section 155 of the present Real Property Law (Laws of 1896, chap. 547), and from which the provision of the Real Property Law was taken, did not change the rule of the common law as to the effect of a conveyance by the donee of a power who is also the possessor of other interests in the property to which the power relates when in the conveyance no mention is made of the power.

The common-law rule is well expressed by a quotation in the case cited from Sugden on Powers (3d Am. ed. p. 477) where it is said that "the doctrine settled by the decisions seems to be this: When the donee of a power to sell land possesses also an interest in the subject of the power, a conveyance by him without actual reference to the power will not be deemed an execution of it, except there be evidence of an intention to execute it or at least in the face of evidence disproving such intent."

Kent, in his Commentaries, says: "The power may be executed without reciting it, or even referring to it, provided the act shows that the donee had in view the subject of the power. * * * The general rule of construction, both as to deeds and wills, is, that if there be an interest and a power existing together in the same person, over the same subject, and an act be done without a particular reference to the power, it will be applied to the interest, and not to the power. * * In construing the instrument, in cases where the party has a power, and also an interest, the intention is the great object of inquiry." (4 Kent Comm. [14th ed.] *334-336.)

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Chief Judge DENIO, writing the opinion of the Court of Appeals in White v. Hicks (33 N. Y. 383, 393), quotes with approval the language of Judge STORY in Blagge v. Miles (1 Story, 426), who, after examining the English cases on the subject, there says: "All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it shall appear by words, acts or deeds demonstrating the intention."

The general rule stated by Kent and by Sugden is that contended for as applicable to this case by counsel for the appellant, but these eminent authorities each indicate that the general rule is

App. Div.]

Third Department, January, 1906.

nevertheless subject to the exception that effect must be given to the intention of the parties if that can be ascertained.

Here the intention is clear. The grantor received and the grantee paid full value for the premises, and the grantor covenanted that she would forever warrant and defend the grantee in the quiet and peaceable possession of the premises.

It is not to be presumed that the grantor would have taken full value for the premises, or that the grantee would have paid that amount, for the conveyance of a partial interest only. The deed in form being of the entire fee with a warranty of the title thereto shows clearly that the grantor intended to convey not only what she had as a life tenant but what she was entitled to dispose of by virtue of the power of sale. She also described herself as the widow of Smith Mitchell, which indicates that in some way she thought she could only give a good title to the entire fee as his representative. The deed was evidently prepared by some one unacquainted with the law, but nevertheless the intent to convey the entire estate is apparent, and if heed is given to such intent the complaint was properly dismissed.

The appellant relies upon the cases of Weinstein v. Weber (58 App. Div. 112) and Mutual Life Ins. Co. v. Shipman (supra), but these cases were brought squarely under the rule rather than under the exception, which it seems to me governs here.

The fact that the husband of Delinda joined in the conveyance is of no significance, for it was no more essential for him to join in a deed to convey his wife's life estate than to join in a deed of conveyance under the power of sale.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

Third Department, January, 1906.

[Vol. 111.

MARGARET KEESE, Respondent, v. MARTIN DEWEY, Appellant, Impleaded with MARY DEWEY, His Wife, and Others, Defendants.

Third Department, January 8, 1906.

Statute of Limitations — when foreclosure barred - renewal mortgage executed when mortgagor had no title when running of Statute of Limitations not stopped by such fraud-complaint failing to allege fraud.

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When more than twenty years have expired from the time a real estate mortgage became due, a recovery thereon is barred by the Statute of Limitations. Part payments within that time made by some of the mortgagors does not revive the action against a third joint mortgagor who made no payments and who did not authorize such payments.

When mortgagors, prior to the execution of a renewal mortgage, a part of the consideration whereof was a balance due on the prior mortgage, had sold the premises, their undiscovered fraudulent act in executing said renewal mortgage cannot be taken advantage of by the mortgagee in order to prevent the running of the Statute of Limitations on said prior mortgage under a complaint which contains no allegations of fraud, but which proceeds wholly on the theory that the mortgagee under the void renewal mortgage should be subrogated to rights under the former mortgage.

APPEAL by the defendant, Martin Dewey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 3d day of January, 1905, upon the decision of the court rendered after a trial before the court without a jury at the Clinton Trial Term.

On the 2d day of November, 1889, Wallace Dewey and his wife executed and delivered a bond and mortgage for $332, with interest, to one Daniel Keese, the mortgage covering a tract of seventyfive acres of land. There was due and unpaid thereon at the date of the decision $585.92. Afterwards Daniel Keese died and his administratrix assigned the bond and mortgage to the plaintiff herein. Prior to the giving of said mortgage and on the 17th day of November, 1885, the mortgagors, Wallace Dewey and his wife, deeded the premises described in the mortgage to their daughter, the defendant Ellen Dewey, for an alleged consideration of $1,000. At the time they executed and delivered said bond and mortgage they had no title to the premises covered by the mortgage. Upon the 2d day of November, 1889, the same day of the giving of the

App. Div.]

Third Department, January, 1906.

mortgage herein before mentioned, a mortgage given by Wallace Dewey and his wife and Martin Dewey to said Daniel Keese, dated August 2, 1879, for $277.50, with interest thereon, was satisfied of record. Said mortgage so satisfied covered said seventy-five acres of land and also another tract of one hundred acres and a

further tract of fifty acres. The mortgage, dated August 2, 1879, became by its terms due and payable August 2, 1881. On August 2, 1889, the interest was paid on said last-named mortgage and at that date said mortgage had been reduced by the payment of principal and interest, leaving a balance of $100 of principal due. Said sum of $100, together with $1.75 of interest thereon, formed a part of the consideration for the new mortgage dated November 2, 1889. Prior to the commencement of the action said Wallace Dewey and his wife died intestate, leaving as their sole heirs at law and next of kin the defendants Martin Dewey, Ellen Dewey, Patrick Dewey and John Dewey. The court on the trial found the foregoing facts. It also found that the satisfaction upon November 2, 1889, of the mortgage dated August 2, 1879, and the giving of the mortgage of November 2, 1889, formed a part of the same transaction; that the plaintiff had succeeded to all the rights of her father, Daniel Keese, the original mortgagee in the mortgages mentioned; that the mortgage of November 2, 1889, was void, as the mortgagors had no title to the premises at the time of the giving of the same and that the plaintiff was entitled to be subrogated to the security of the mortgage of August 2, 1879, and to have its discharge canceled and its liens restored, and the court directed a foreclosure of the mortgage of August 2, 1879, as to all the real estate covered by the mortgage, which at the time of the filing of the lis pendens in this action was in the hands of the original mortgagors, or their heirs, namely, of said one-hundred-acre tract and said fiftyacre tract. There was also a finding that there was due on the mortgage of November 2, 1889, the sum of $585.92; that of that amount the sum of $101.75, with interest from November 2, 1889, viz., $193.63, was the sum remaining due on the mortgage of August 2, 1879, for which amount the plaintiff is entitled to judgment. From the judgment entered upon such decision the defendant Martin Dewey has appealed. Further facts are stated in the opinion. APP. DIV.-VOL. CXI,

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