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Henry Cooper, for appellants, Lockwood, Sole Testamentary Trustee, etc., and others. Howard R. Payne, for respondents, Brantly, Adm'r, etc., and others.

DANFORTH, J. This action was commenced May 12, 1883. It appears from the record that Benjamin F. Cooper died at the city of Utica on the sixth of May, 1864, after devising all his property in trust.First, for the support and benefit of Mary A., his wife, and Helen, his daughter; and, if there should be any surplus, then, second, for the support of his sons William and Henry. The persons named as trustees and his son William B. were appointed executors, but Graham and William B. alone qualified as such. The will was admitted to probate in June, 1864, and the above-named executors, and Graham, as trustee, continued to act in their several capacities until December 20, 1880, when, upon proceedings instituted in the supreme court by Graham, Mary A., Helen, William B., and Henry Cooper, an order was made discharging Graham from his office of executor and trustee; and from that time Brantly continued sole executor until his death, in 1882, when James B. Lockwood was appointed in his place. At the commencement of this suit, therefore, William B. Cooper was the sole executor of the will of Benjamin, and Lockwood sole testamentary trustee. William B. Cooper refused to join as plaintiff, either as an individual or as executor, and was therefore made co-defendant, in both capacities, with William T. Brantly, who was sued as the administrator of the Brantly before mentioned. The plaintiffs are Lockwood, who sues as trustee of the estate of Benjamin F. Cooper, Mary A. Cooper, Helen Cooper, and Henry Cooper, beneficiaries under his will.

The object of the action is to compel the defendant Brantly to transfer to the defendant William, as executor, or to the plaintiff Lockwood, as trustee, certain shares of the capital stock of the Utica Cotton-mills, and $1,600.24, with interest; being the amount of dividends paid thereon since the first day of August, 1871. The defendant Brantly alone answered, denying certain material allegations of the complaint, and setting up several affirmative defenses. At special term the issues were decided in favor of the defendant, and the complaint dismissed. Upon appeal by the plaintiffs the general term affirmed that decision, and against the judgment then rendered they appeal to this court.

The present controversy brings in question the title to the stock above referred to. It is undisputed that six shares were owned by the testator; that on the fifteenth day of May, 1861, he duly transferred those shares to William G. Brantly, the respondents' intestate, as collateral security for a loan of $500 theretofore made to him, and at that time with the interest thereon unpaid and due. For a time Cooper, under a power of attorney from Brantly, collected the dividends, and applied them to his own use. Afterwards Brantly assigned the stock to “William B. Cooper, trustee,” and on the third of February, 1864, they were so transferred on the books of the company, and a new certificate issued to the assignee. He collected the dividends until February 1, 1865; and after that, until August, 1866, they were collected by Graham, and paid over, by Brantly's direction, to Mrs. Cooper and Helen Cooper. It is also found by the learned trial court, upon evidence before him, that upon the seventh of July, 1866, Cooper, as trustee, for value received, transferred the stock to Brantly, who thereafter, until his death in March, 1882, held, claimed, and treated the stock as absolutely his own, and received the dividends thereon.

The plaintiff's contention is, in substance, that, notwithstanding this new and absolute assignment, Brantly afterwards held the stock either as he had first received it, as collateral security, or, the dividends having amounted to the sum for payment for which it was pledged, as depositary without a lien upon or interest of any kind in it; in either event, as trustee. It certainly does not appear upon what actual consideration the final transfer to Brantly was made, but the fact of transfer, and the claim of ownership, were known to every one of the parties interested long before the death of Mr. Brantly, and to William B. Cooper and Graham at the very time of the transfer; for both were actors in the transaction. They were trustees and executors, they knew of the terms of the original assignment by way of pledge or collateral security, and of the subsequent absolute conveyance. So did Henry Cooper, one of the beneficiaries under the will, and Mary E. and Helen Cooper, whose meagre support was derived from an estate insufficient for that purpose, and was eked out by the frequent benevolence of Brantly, avowedly founded upon his possession and ownership of the stocks in question. Not one of these persons disputed the title of Brantly, and although, in 1880, Graham, on their petition, was relieved of his trust, no claim was made by either that the stock formed part of the estate of B. F. Cooper, with the management of which he had been charged. Not then, nor till after the death of Brantly, did this contention arise. Had it been otherwise, it may be presumed some fuller explanation might have been had from him. If it be now scant, the plaintiffs cannot complain. On the part of Brantly there was no concealment; on the part of every one interested there was perfect acquiescence.

From these facts it would seem to follow that, at the time of Lockwood's appointment as testamentary trustee, the estate intrusted to him was in no way concerned or interested in the stock in question. The defendant's intestate had acquired a good legal title to it, and we agree with both courts, whose judgments are before us, that there is in evidence nothing which would justify any tribunal in depriving his estate of its benefit. Indeed, there is no reason to believe that this action would have been brought except for the death of Brantly, and that circumstance should not relieve the plaintiffs from giving the fullest measure of proof, and repelling by evidence the presumption which, after a lapse of more than 20 years, requires us to hold that the apparent title was the real title. Here is not only lapse of time and negligence in asserting the contrary, but acquiescence,-three objections to the plaintiffs' claim which, upon the testimony, are wholly unexplained, except upon the theory that, so long as Brantly lived, all parties interested recognized his title as unassailable. There would be great danger of an unjust advantage if, he being dead, the same parties should now be allowed to question it. It is difficult to find good faith in the plaintiffs' claim. There has certainly been no diligence in asserting it. We think there is no equity in the suit, and that the complaint was properly dismissed.

The judgment appealed from should be atfirmed, with costs.

(All concur.) (103 N. Y. 536) JEX and another, Executrices, etc., v. MAYOR, ETC., OF CITY OF NEW YORK.

(Court of Appeals of New York. November 23, 1886.) 1. MUNICIPAL CORPORATIONS—CITY OF NEW YORK-STREET ASSESSMENT—COMMON COUN

CIL.

It is a condition precedent to the right of the common council of the city of New York to make an assessment for the repaving of Broadway, that it should be pe

titioned for by the requisite number of property owners. 2. Taxes- ILLEGAL TAX-ACTION TO RECOVER BACK-VACATING ASSESSMENT.

Where the assessment of a tax upon a property owner has been imposed without jurisdiction, it is not essential that it should be first vacated, in order to enable him to recover back the money paid thereon. Action to vacate an assessment, and to recover back money paid thereon. Judgment for defendants. Plaintiffs appealed. The facts are stated in the opinion.

Herbert A. Shipman, for appellant. D. J. Dean, for respondents.

ANDREWS, J. Upon the facts averred in the complaint, the assessment imposed upon the lands of the intestate for regulating and paving Broadway, although valid on its face, was nevertheless void for want of jurisdiction. It was an assessment for repaving, and the ordinance of the common council, directing the improvement, was not based upon a petition of a majority of the property owners, as required by the charter. Laws 1873, c. 335, $ 115. The work also involved an expenditure exceeding $1,000, and was not let by contract, nor was it authorized by a vote of three-fourths of the members of the common council, which is essential to justify a departure from the general rule requiring work, involving an expenditure exceeding that amount, to be done by contract founded upon sealed bids and proposals.

The presentation of the proper petition is the basis of the jurisdiction of the common council to incur an expense for repaving, reimbursable by local assessment. The statute requiring the presentation of a petition was designed for the protection of property owners. The initiation of the improvement without a petition was not an irregularity merely, but was fundamental. It was a condition precedent to the right to make an assessment for the improvement that it should have been petitioned for by the requisite number of property owners. See In re Emigrants' Saving Bank, 75 N.Y. 389; In re Weil, 83 N. Y. 543; In re Manhattan Ry.Co., 102 N. Y. 302; S. C. 6 N. E. Rep. 590.

It is alleged in the complaint that the intestate, being ignorant of the defects in the proceedings, was required to pay, and did pay, under coercion of law, an assessment against his lands for the improvement, amounting to $1,487.02, and that the claim to have the money repaid had been duly presented to the comptroller, and was rejected; and the complaint demands judgment vacating the assessment, and also for the amount paid thereon by the plaintiff, with interest. It is not controverted that, if the assessment was illegal, a case was presented by the complaint which, under the general rule of law, entitled the plaintiff to relief. Strusburgh v. Mayor, 87 N. Y: 452. It is contended, however, that the vacation of the assessment must precede or accompany the remedy to recover back the money paid, and that the remedy by action to vacate the assessment has been taken away by chapter 312 of the Laws of 1874, amending chapter 338 of the Laws of 1858, which declares that “hereafter no suit or action in the nature of a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title; but owners of property shall hereafter be confined to their remedies, in such cases, to the proceedings under the act hereby amended;" and that, this remedy being taken away, the right to the other relief is gone. The act of 1858 provided an easy and expeditious remedy for the vacation of an illegal or irregular assessment which constituted a cloud upon title, without subjecting parties affected thereby to the necessity of resorting to the dilatory and expensive remedy by action. The amendment of 1874 made this remedy exclusive. But the statute only applies where there is an existing lien created by the assessment. When the lien is removed by payment or otherwise, the act has no application. In re Lima, 77 N. Y. 170; In re Hughes, 93 N. Y. 513. The act of 1874 did not, in terms, and could not have been intended to, take away all remedy to recover back money wrongfully extorted under color of an illegal assessment. It confines owners of property to the remedy given by the act "in such cases;” that is, where the remedy sought is the vacation of an assessment and the cancellation of an existing lien.

The right of action in this case arises out of the unlawful exaction of money from the plaintiff under an illegal process, which, on being paid, operated to cancel the lien. It is not touched by the act of 1874. See Strusburgh v. Mayor, supra. The assessment having been imposed without jurisdiction, it was not essential that it should be first vacated in order to enable the plaintiff to recover back the money paid thereon. A void assessment, like a void judgment, is a nullity, and, when its collection has been enforced, the money may be recovered back, although the assessment has not been formally vacated. Bruecher v. Village of Port Chester, 101 N. Y. 240; S. C. 4 N. E. Rep. 272. If, however, the vacation of the assessment was necessary, that relief may be had in this action, in connection with relief for the recovery of the money which the plaintiff's testator was illegally compelled to pay.

The judgment should therefore be reversed, with leave to the defendant to answer on payment of costs.

(All concur.) (103 N. Y. 414)

BOSTWICK 0. BEACH, Ex'x, and others, Ex'rs, etc.

(Court of Appeals of New York. November 23, 1886.) 1. SPECIFIC PERFORMANCE-EXECUTOR'S CONTRACT FOR SALE-POWERS.

Where executors, empowered by the will to sell real estate, execute a valid executory contract for a sale, such contract is an execution of the power, and confers upon the purchaser an equitable title to the land sold, and the court will compel the executors to perfect the title by a conveyance, when the contract is fair, and no

laches is shown by the purchaser. 2. Same-TENDER-MESNE PROFITS-INTEREST.

Where a purchaser has entered into a valid contract for the purchase of land, with executors empowered to sell by the will, and, on the date named for completing, has tendered the balance of the purchase price, and a proper executor's deed for execution, and, on execution being refused, has deposited the money and deed in a bank, with notice to the executors, payable to their order on their executing the deed, he is entitled to specific performance of the contract, and is not liable for

interest on the purchase money. 3. SAME-EXECUTORS-DOWER-MORTGAGE-MESNE PROFITS.

Under a will directing the executors to make an early sale of the testator's real estate, consisting of a larm, but providing that, until sale, the widow should retain possession of the house, together with a portion of the farm, the widow, who was an executrix, and her co-executors, in 1881, executed a valid contract for sale of the land to plaintiff. At the time, the land was subject to a mortgage and the widow's right of dower. No mention of these incumbrances was made in the contract, but the consideration was for full value. The widow refused to complete, and remained in substantial occupancy of the farm till this action was brought by the purchaser for specific performance; the estate receiving nothing therefrom. In such action, held, that the purchaser was entitled to specific performance, and to judgment against the executors for the rental value of the land since the date named in the contract for completion, less the rental value, to which the widow was entitled by virtue of her dower right; that the widow should release her dower in the land, and receive therefor, out of the purchase money, the value of her dower right, to be ascertained as of the date for completion named in the contract, and should pay thereout to the purchaser the rental value to which she had been entitled by virtue of her dower right since the last date, and the mortgage should be paid off out of the purchase money. Suit for specific performance. Appeal from an interlocutory judgment against executors.

C. D. Adams, for appellants. A. H. Sawyer, for respondent.

RAPALLO, J. The will of Nelson J. Beach contained a valid power in trust to his executrix and executors to sell and convey his real estate, and declared that the sale should take place at an early day. Until such sale the testator directed that his wife retain possession of the house occupied by him, for herself and her unmarried daughter, together with a certain portion of his farm. The testator died February 22, 1876, seized in fee of the farm in question, which contained about 275 acres of land of the value of about $11,000, and was subject to a mortgage of $900 and the widow's right of dower. Although, under the will, it was the duty of the executrix and executors to sell this farm at an early day, no sale appears to have been made until December 27, 1881, when the contract upon which this action was brought was entered into.

In the mean time the widow and executrix, Emily P. Beach, remained in the substantial occupancy of the farm, and the estate received no income therefrom, but bore the charge of interest on the mortgage, and insurance and repairs upon the buildings. That state of affairs continued at the time of the commencement of this action.

The receipt signed by the executrix and executors on the twenty-seventh of December, 1881, and set forth in the complaint, constituted, in our judgment, a valid contract for the sale of the farm to the plaintiff. It contained all the essential elements of a contract, and was very similar in form to the contract set out in the case of Westervelt v. Matheson, Hoff. Ch. 37, and therein adjudged to be sufficient.

We entertain no doubt that where the executors of the will of a deceased person, empowered by the terms of the will to sell his real estate, enter into an executory contract for such sale, performance of such contract may be enforced in equity, at the suit of the purchaser. The contract of sale is in effect an execution of the power, and confers upon the purchaser an equitable title to the land sold, and the court will compel the executors to perfect that title by a conveyance, where the contract is fair and for a sufficient consideration, and there is no default or laches on the part of the purchaser. We are not referred to any authority directly in point; but the cases of Bowers v. Trustees of Irish Presbyterian Church, 6 Bosw. 245, and Demarest v. Ray, 29 Barb. 563, are analogous in principle. There can be no valid objection, therefore, to decreeing the execution and delivery to the plaintiff, by the executrix and executor, of a deed conveying all the title which the testator had, at the time of his decease, to the farm in question, on his complying with the terms of the sale. This, however, would not accomplish complete justice. The purchaser is entitled to a clear title, free of incumbrances, where he agrees to pay the full value of the property. Rawle, Cov. 430; Burwell v. Jackson, 5 Seld. 535.

The mortgage of $900 presented no obstacle to the carrying out of the contract of sale,

for the rule is well settled, as laid down in Westervelt v. Matheson, Hoff. Ch. 37, that a purchaser for full value is entitled to have incumbrances removed out of the purchase money. So far as the mortgage is concerned, that disposition of the case would do complete justice between the parties, for the estate of the testator would receive the full value of his interest at the time of his decease, such interest having been subject to the mortgage.

As to the dower right of the widow a more complicated question is presented. If the purchaser should elect to carry out his purchase, and take title to the land subject to that dower right, he would clearly be entitled to do so, and in that event would be entitled to an abatement from the contract price equal to the gross cash value of the right of dower. If a seller of land is not able to comply fully with the contract, either in respect of the quantity of land or the extent of the estate, the court will, at the election of the buyer, decree specific performance of the contract so far as the same can be performed, awarding compensation to the purchaser, by way of abatement from the purchase price, for any deficiency in title, quantity of land, or other matters touching the estate, the value of which are capable of being ascertained, and thus compensated without doing injustice to either party. Upon this principle specific performance has been decreed where there was an outstanding dower right which the vendor could not control, and the purchaser elected to take subject to that incumbrance. The gross value of the dower right has been adjudged, in such cases, to be the measure of compensation to be allowed to the purchaser by way of abatement from the price. Woodbury v. Luddy, 14 Allen, 1; Davis v. Parker., Id. 94, 98, 104.

If, in the case now before us, the widow had not been a party to the contract of sale, she could not be compelled to accept, in lien of dower, a money compensation out of the proceeds, and the only course open to the purchaser would have been either to reject the purchase in toto, or to eléct to take title

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