Jakobina Fleck, Emil Rau, Max Rau and Charles A. Rau, Appellants, v. Carolina Rau, Martin Heldt and Others, Respondents

Jakobina Fleck, Emil Rau, Max Rau and Charles A. Rau, Appellants, v. Carolina Rau, Martin Heldt and Others, Respondents. Partition—sale to a bona fide purchaser for value of property previously conveyed by the grantor by am unrecorded trust deed—findings conclusive where there is no statement that the case contains ail the evidence—proof to establish a lost deed — declarations of the grantor made after.he has conveyed the premises, inadmissible, if objected to. In an action brought for the partition of certain lands formerly owned by one-Frederick W. Rau, the husband of Carolina Rau, it appeared that in 1871 Frederick W. Rau executed and delivered a conveyance of the lands in question to one Martin Heldt in trust to receive the rents, issues and profits thereof and apply the same to the use of one Frederick Rau during the term of his natural life, and after the death of the said Frederick Rau to sell the property and pay over the proceeds to such of the heirs of said Frederick Rau as should then be living. The deed was not recorded until March 17, 1894, after the grantor’s death, which occurred on December 24, 1893, and the trustee never .took possession of any part of the premises,, but they were occupied up to the time of the grantor’s death by the grantor and his wife. In 1884, Frederick Rau, the benéficiary named in the trust deed, died, and in 1895 the trustee made a conveyance of the land to four of the heirs of the said Frederick Rau,, who brought this action for the partition thereof against his widow and others: The trial court found that the widow had no knowledge of the existence of the trust deed until after it had been recorded; that in 1889,. her husband, the said Frederick W. Rau, in consideration of a large indebtedness existing on Bis part to the widow, and of the payment by her to him, at the time, of some §6,000, conveyed the premises in question to one Schmersahl, who conveyed them to the widow, and that by reason thereof the widow became the lawful owner of the property and the plaintiffs lost all interest therein. The case, on an appeal by the plaintiffs from a judgment in favor of the widow, contained no statement or certificate that it contained all the evidence. Held, that the findings of the trial court were conclusive, unless there was some error in the admission or exclusion of testimony that called for a reversal; That, although the proof as to .the contents of the deed from Frederick W. Rau ■ to Schmersahl, which, it appeared, had been lost, was hardly sufficient, yet as there might have been other testimony, not printed in the appeal book, which would have strengthened the case in this respect, the court would not interfere with the judgment. Upon the trial the widow gave evidence of oral declarations made by Frederick W. Ran to the effect that he had conveyed the premises in question to Schmersahl. Meld, that these declarations were not against the interest of the person making them, as he had parted with his title long before, and that they would not have been admissible if proper objection had been taken, but as no such objection .was made the plaintiffs could not take advantage of the error. Appeal by the plaintiffs, Jakobina Fleck and others, from a judgment of the Supreme Court in favor of the defendant Carolina Rau, entered in the'office of the clerk of the county of Westchester on the 28th day of January, 1896, upon the decision o"f the ■court rendered after a trial at the Westchester Special Term. Zeller & Miehling, for the appellants. John F. Brennan, for the respondents. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: This is an action for the partition of certain real estate in the county of Westchester, which was formerly owned by Frederick W. Rau, the husband of Carolina Rau, the respondent. On May 22, 1871, he executed a conveyance of the premises - to Martin Heldt in trust to receive the,rents, issues atid profits thereof, and apply the. same to the use of Frederick Rau of Spielberg, in the Grand Duchy of Baden, during the term of his natural life, and after the death of the said Frederick Rau to sell the property and pay over the-, proceeds of the sale to the heirs of the said Frederick Rau who should then be living. This deed, according to the testimony of Martin Heldt, was delivered to him by Frederick W. Rau, the. grantor, in -the year 1871. He did not record it at once, however, but kept' it in his possession until March 17, 1894, when it was placed upon record in the register’s office of Westchester county.. The trustee never took possession of any part of the premises, but they remained in the possession of Frederick W. Rau, the grantor,, and his wife, the respondent, up to the time of the death of Frederick W. Rau, which occurred on December 24,1893, and the widow has been in possession ever since. Frederick Rau of Spielberg, the first beneficiary named in the trust deed, died in 1884, and in 1895, after Martin Heldt, the trustee, had recorded this deed, he made a conveyance of the premises to the plaintiffs, Jakobina Fleck, Charles A. Rau, Emil Rau and Max Rau, who are four of the heirs of the said Frederick Rau of Spielberg, and who brought this suit as plaintiffs for the partition of the property, in which they claim to have thus acquired an interest. The only defendant who interposed an answer was the widow of Frederick W. Ran, who alleged and proved to the satisfaction of the trial court that she had no knowledge or notice of the existence of the trust deed from her husband to Martin Heldt until after the same was recorded on March 17, 1894; that on or about the 21st day of Hovember, 1889, her husband conveyed the premises in question to one Frederick L. Schmersahl, and the said Frederick L.. Schmersahl conveyed them to her; that this transfer through an intermediary was made in consideration of a large indebtedness existing on the part of Frederick W. Rau to his wife and of the payment by her to him of $6,000 at the time of the delivery of the deeds, and that these facts made the respondent Carolina Rau the lawful owner and holder of the property and deprived the plaintiffs of any interest therein. There being no certificate or statement that the case on appeal contains all the evidence, the findings .of the learned judge at Special Term are conclusive upon us, unless there was some other error in the admission or exclusion of testimony which calls for a reversal. (Porter v. Smith, 107 N. Y. 531.) We find no such error. The deed from the respondent’s husband to Schmersahl is lost, 'and the defendant was obliged to rely upon oral evidence to establish its character and contents. ■ Some of this testimony was put in before the loss of the deed had been sufficiently proved, but this omission was supplied subsequently, during the trial by the respondent herself, who swore that she had searched for the instrument in vain among her own papers and those of her deceased husband. The proof as to what this lost deed contained was rather meagre,, and consisted to a.great extent of statements of conclusions of fact, rather than of specific facts themselves. It hardly came up to the standard declared in Edwards v. Noyes (65 N. Y. 125), where the court, speaking through Earl, Oh. J., said: “ Parol evidence to establish the contents of a lost deed should be clear and certain. It should show that the deed was properly executed with the formalities required by law, and should show all the contents of the deed not literally but substantially. If anything less than these requirements would suffice, evil practices, which it was the object of the Statute of Frauds to prevent, would be encouraged.” But it may be that there was other testimony not printed in the appeal book which strengthened the case in this respect, and we cannot interfere with the judgment, as already stated, on the ground of the insufficiency of the evidence to sustain the findings. In addition to proof, concerning the contents of the missing deed, the defendant gave evidence as to declarations ma*de by her husband to the effect that he had conveyed to Schmersahl. One John Schlobaum testified that Frederick W. Rau, the respondent’s husband, with whom he was intimately acquainted, told him that “ He had deeded his property to a gentleman in Hew York by the name of Schmersahl, and from Schmersahl over to his wife, and he thought it was not necessary for him to make a will just yet.” Proof of this declaration would not have been admissible if proper objection had been interposed. The person making it had long ago parted with the legal title to the land by the execution and delivery of the trust deed, and the declaration was in no sense against his interest, but, so far as the claim of the plaintiffs was concerned, plainly in favor of his interest. But there is no objection or exception in the case which raises the question of its admissibility, or which could have brought any such question to the attention of the trial judge. Hr. Schlobaum was merely asked whether he had ever had any conversation with Frederick W. Rau at a specified time. The question was objected to as immaterial, irrelevant and incompetent; the objection was overruled and plaintiffs’ counsel excepted. This exception was not well taken. . The question did not call for the conversation, but merely asked whether there had been any conversation or not, and was fully and responsively answered when the witness said, “Yes, sir.” Thus far there was no error. The record is largely made up •in narrative form, and these words are followed at some distance by a statement of what Frederick "W. Rau said to the witness about having made a deed to Sehmersahl. It may well be, therefore, that another question was asked, calling for this conversation, to which no objection was made. The real ground of complaint, if any, on the part of the plaintiffs, is that the witness was then allowed to go on and volunteer testimony. But, so far as appears, no objection was made to his course in this respect, nor was any motion made to strike such testimony out. This was requisite in order to raise the question. (Platner v. Platner, 78 N. Y. 91; Holmes v. Moffat, 120 id. 159; Hickenbottom v. D., L. & W. R. Co., 122 id. 91.) The motion to strike out, which was made at the end of the trial, did not accomplish this purpose. It was the renewal of a motion made earlier in the case, and there was nothing in it which recalled to the mind of the court the declaration to which Schlobaum had testified. The motion related to testimony about the deeds, and was too general to justify us in saying that the court understood, or ought to have understood, that it referred as well to Frederick W. Ban’s declaration made to Schlobaum. The judgment.should be affirmed, with costs. All concurred. Judgment affirmed, with costs.