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of H. L. R., in the city of New York, and that said H. L. R. then and there, at said S. A.'s request, witnessed the execution of said deed, and signed his name as subscribing witness thereto, and that at the time of executing said deed the said S. A. stated that he intended it as a gift to his daughter.
That on or about the fifth day of July, 1852, the said S. A. left New-York with the intention, in a short time, of proceeding to Saratoga Springs, where he was to meet the plaintiff and her husband, but that he died before reaching the latter place, without having seen the plaintiff subsequently to the execution of said deed.
That, as plaintiff is informed and believes, her father executed said deed, and caused the same to be witnessed by the said H. L. R., as a complete and perfect conveyance, with the intent that the same should from that time operate as a complete and perfected conveyance and assurance, of the property therein mentioned, to the said plaintiff, and that be intended to deliver the said deed to the said plaintiff within a few days thereafter, and as soon as they should meet.
That the said deed has been, since the death of the said S. A., and now is, in the possession or under the control of the said defendants, the executors and trustees aforesaid; and that plaintiff has, at different times since her father's death, requested the said defendants to deliver to her the same, and that she has caused the delivery of said deed to be duly demanded of said defendants, but that they have altogether refused, and still wholly refuse to give up the possession of said deed.
Wherefore the plaintiff demands judgment against the said defendants, W. M. A., J. L. and J. W. Q., that they may be required to deliver said deed to the plaintiff. And that her title to, and possession of, the property described in said deed, may be quieted and confirmed as against each and all of the defendants, whether claiming as executors or residuary devisees or otherwise. And for such further or other relief in the premises as the court shall direct, with costs of this action.
KING & BUEL.
To compel defendant, a trustee, to certify his consent to the
execution of a conveyance, which he had omitted, by accident, to do, and which was necessary to the proper execution of a trust power.
SUPREME COURT-COUNTY OF CHENANGO.
Benjamin R. Barber
agt. George A. Cary.
Benjamin R. Barber, plaintiff, complains of George A. Cary, defendant: That on or about the 4th day of December, 1846, the said defendant, as trustee for Albert G. Cary and Melissa, his wife, conveyed by warranty deed, duly signed, sealed and delivered, all of that certain piece or parcel of land lying in the town of Oxford, Chenango county, New-York, and being a part of lot number nine in the gore, bounded and described as follows, viz: (Here insert description), to him, the said plaintiff, for a valuable and sufficient consideration. That, as he is informed and believes, the aforesaid lands are part of certain lands devised to Albert G. Cary, during his life, and to his heirs, in and by the last will and testament of Anson Cary, deceased.
That Anson Cary, the said devisee, died on or about the 3d day of May, 1842. That as he is informed and believes, a power was given, in and by the last will and testament of Anson Cary, deceased, to the said Albert G. Cary, to sell the lands so devised to him, of which the lands above described, conveyed by the defendant to the plaintiff, form a part, and to dispose of the same, by and with the advice and consent of his mother, Hannah Cary, and brother, George A. Cary.
That Hannah Cary died on or about the 9th day of July, 1842, and before the execution of the power aforesaid.
That, as he is informed and believes, Albert G. Cary conveyed the said lands, devised to him by Anson Cary, deceased, of which lands above described formed part, to the defendant, George A. Cary, in trust, by and with his advice and consent, on or about the 19th day of July, 1843. That, as he is informed and believes, one of the purposes and objects of the trust aforesaid, was the sale of the whole or part or parts of the said lands so conveyed in trust, and out of the purchase money to extinguish and pay up a judgment which was a lien upon the said land, then owned by William G. Sands.
That, as he is informed and believes, the consent of George A Cary to the execution of the power aforesaid, contained in the last will and testament of Anson Cary, deceased, by the sale to himself, as aforesaid, of the said lands devised to the said Albert G. Cary, for his life, and to his heirs ; with power of sale by the advice and with the consent of George A. Cary, although given at the time, was not expressed in the said conveyance to George A. Cary, by which the said power was executed, nor certified in writing thereon as required by statute.
That on the aforesaid fourth day of December, 1846, this plaintiff executed and delivered a mortgage on the above described lands conveyed to him by the defendant, to William G. Sands, as security for the payment of two hundred and twenty-one 500 dollars, and paid him thirty dollars in money, being part of the purchase money of the said lands, and being, as he is informed and believes, the amount of a judgment owned by the said Sands, against Albert G. Cary, and which was a lien upon the said lands conveyed to said George A. Cary, in trust; and which mortgage and payment, as he is informed and believes true, the said Sands agreed to accept, and did accept, as full payment, and in discharge of the said judgment.
That, as he is informed and believes, the said George A. Cary accepted and received the said payment and discharge of said judgment to Sands, as part payment for the said lands conveyed to the plaintiff.
That, as he is informed and believes, the said William G. Sands did, on the 25th day of June, 1849, assign the said mortgage on the said land conveyed to this plaintiff, to George A. Cary.
That, as he is informed and believes, the said George A. Cary has taken proceedings to foreclose the said mortgage, and has advertised the said premises, pursuant to statute, and given notice that the same will be sold on the fifth day of January, 1850.
That this plaintiff has attempted to raise the money to pay off the said mortgage, and has offered the said lands as security for such money, but that he has been unable to procure the same, by reason of the defect in his title, the consent of the said George A. Cary to the execution of the power of sale contained in the last will and testament of Anson Cary, deceased, not having been certified in writing on the aforesaid conveyance from Albert G. Cary to George A. Cary, as required by statute; and he avers that if consent was so certified on the conveyance, he
could procure the money, as aforesaid; and that an individual has offered to furnish him with the
money pay off the said mortgage, and to take a mortgage, upon the said lands conveyed to him, as security therefor, provided the title of this plaintiff is made good by the endorsement of the consent aforesaid on the conveyance to George A. Cary.
That, as he is informed and believes, the said deed of the aforesaid lands, executed by Albert G. Cary to George A. Cary in trust, is in the possession and under the control of the defendant.
That heretofore, and on or about the 1st day of August, 1849, he requested the said defendant to certify in writing his consent, to the execution of the power aforesaid and to the sale of the lands aforesaid, on the conveyance by Albert G. Cary to him in trust, but that said defendant refused so to do.
Wherefore the plaintiff demands judgment, that the defendant certify his consent in writing, upon the conveyance executed by Albert G. Cary to him in trust, to the • execution of the power contained in the last will and testament of Anson Cary, deceased, and to the sale of the said lands, to answer the requirements of the statute in such case made and provided, and to perfect the said conveyance, and that he acknowledge the same on the payment of the fees by the plaintiff, and that he deposit the same or permit the plaintiff to deposit the same in the clerk's office to be recorded, on payment of the fees for the record; or for such other relief as to this honorable court may seem meet, with the costs of this action.
R. J. BALDWIN,
Attorney for Plaintiff.
1 I subjoin the following extracts from the opinion of Justice Mason, at Special Term, in rendering judgment for the plaintiff in this action, as it will serve to indicate the class of actions to which a complaint