Farlow v. Farlow

McSherry, C. J., delivered the opinion of the Court. The bill of complaint was filed in this case to procure a decree requiring the specific performance of a contract for the sale of land. The defence relied on is that the vendor has not a good and marketable title. In disposing of this contention it will be necessary to refer to several of the conveyances filed as exhibits with the bill and answer.

The plaintiff claims title under a deed from Robert H. Smith, Esq., trustee. The outlines defined in this deed embrace the property in question. Mr. Smith was appointed trustee to sell the property under a mortgage executed by Scott R. Hancock, and if the latter had title to the property covered by the mortgage then that title is incontestibly vested, under the conveyance from Mr. Smith, in the plaintiff. It will not be necessary to go back in tracing the title farther than the year eighteen hundred and fifty-five, as both parties concede that at that time Absolom Hancock acquired from Rev. James Dolan the property in fee-simple.

In eighteen hundred and sixty-six Absolom Hancock executed a deed conveying to Rachel S. Hancock, his wfife, “ all his property, real, personal and mixed, of every kind and description, in trust to hold the same for the use and benefit of said Absolom during his natural life, with power, nevertheless, to said Absolom and Rachel jointly to sell and dispose of the same or any portion thereof absolutely ¹²⁰ free and discharged of the trust herein set forth.” Subject to Absolom’s life estate and also subject to the power of revocation reserved to Absolom and Rachel, the equitable interest in remainder in the property now involved was by the same deed of trust disposed of as follows : “ My house and lot on the north side of Fayette street, adjoining the Catholic Burial Ground, in fee to my son, Charles A. Hancock, subject to the payment of” certain charges, and the “ vacant lot on the north side of East Fayette street, adjoining the east side of the property given to my son, Charles A. Hancock, fronting about one hundred feet on Fayette street and running back to the north line of the whole property sold by Rev. James Dolan to Absolom Hancock, to my son, Clifford W. Hancock, subject to the payment ” of certain sums and subject to a life estate in Rachel. The deed further appointed trustees to make conveyances in accordance with its provisions after the death of Rachel Hancock. In eighteen hundred and seventy Absolom and Rachel executed a deed referring to the power contained in the prior deed of eighteen hundred and sixty-six, and declared therein their intention to exercise that power. They confirmed “ in all respects the trusts of said deed of April the fourteenth, eighteen hundred and sixty-six', except as heretofore or herein altered and modified,” and whilst not interfering with various other parcels of property declared “ null and void the conveyance of the house and lot on the north side of East Fayette street, adjoining the Catholic Burial Ground, to said Charles A-Hancock.” Then, after stating with reference to the lot previously limited over to Charles,that “they do sell and convey and dispose of the same as follows: The original deed of trust, subject to the power reserved.in the same as follows ; ” they reserve a life estate to Absolom and divide the lot into three parcels, conveying each of the three to Rachel in trust for each of three sons, warranting “the same to the parties aforesaid free, clear and discharged of all claims except such as may be set forth in this convey ¹²¹ anee.” Obviously the language above quoted, viz.: “ The original deed of trust, subject to the power reserved in the same,” is an awkward and inartistic way of declaring that the disposition made by the deed of eighteen hundred and seventy, was to be likewise subject to the power of revocation contained in the deed