Ambrose Booker, Respondent, v. George Booker, Individually and as Administrator, etc., of Bridget Booker, Deceased, and Others, Defendants, Impleaded with James Preston and Lucy Preston, Appellants

Ambrose Booker, Respondent, v. George Booker, Individually and as Administrator, etc., of Bridget Booker, Deceased, and Others, Defendants, Impleaded with James Preston and Lucy Preston, Appellants. Second Department, May 3, 1907. Real property-r-.delivery of mortgage to agent of mortgagor— effect of conveyance by mortgagor before delivery of mortgage — suspension • of power, of alienation — effect of illegal condition. A delivery of the key of a box containing a mortgage executed-by a mother in favor.of her son to a third person, with instructions to -delivér the mortgage to the son, is a good delivery to the latter. - But if prior to such delivery the mortgagor executed and delivered a deed of the . mortgaged property to another, she divested herself of title, and nothing, passed by, the subsequent delivery of- the mortgage. ' . Although a provision in a deed conveying a fee that the grantee shall not alien the property during, a period of twenty years from its date is void as .unlawfully suspending the absolute power of alienation, the fee passes, nevertheless, free of the'illegal condition. A void or unlawful condition in a conveyance in fee, like a repugnant one, does not work a forfeiture. Appeal by the defendants, James Preston- and another, from a judgment of the Supreme Court in favor of the plaintiff, -entered in the office of the clerk of the county of Westchester.- on- the- 7th day of October, 190o, upon the decision of the court rendered after a trial at the Westchester,. Special Term. The action was to foreclose, a mortgage-.on real estate. Bridget -Booker died November 21st, 1897. On Juno 20th, 1890, she- executed a real estate bond and mortgage to the plaintiff, her Son, for .$300, payable' three years; after her death.- She did not deliver them to him, hut kept them in her closet in á locked box. . Four; or five days before she died she gave-the key to the box Io another son and told him to get them out.' of the closet and deliver them to the plaintiff, but he did not-do so-until after she died. ' Three days after the making of the said bond and mortgage, viz., on June 28th, 1890, the. deceased executed-and delivered a deed of conveyance of the land covered by the mortgage to her daughter* Sarah J. Booker, who died intestate the same day her mother died, leaving the defendants Lucy Preston, her daughter and only heir, and James Preston, her husband. It. contained the following clause after the words of conveyance, viz.: “ Subject nevertheless, to the following condition and restriction to which this conveyance is made and accepted by the party of the second part — that is to say, that neither the party of the second part, nor her heirs or representatives are to alien, sell or convey or mortgage the said premises, or any part thereof, during the. period of twenty-one years from and after the date of this conveyance.” The said deed was recorded after the mother’s death, viz., on November 24th, 1897, and the said mortgage two weeks later. • Lewis O. Platt \_Frederiok B. Van Hleeok, Jr,, with him on the brief], for the appellants. Arthur M. Johnson, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: Those claiming under the deed of conveyance put in an answer denying the mortgage and asserting their title. The learned trial judge held that the mortgage was delivered in the lifetime of the mother, the mortgagor. The delivery of the key of the box in which she kept it to the third person with instructions to get it and deliver it was a delivery. It was a delivery to him to deliver to the mortgagee, the plaintiff, and that was a good delivery to the plaintiff (Hathaway v. Payne, 34 N. Y. 92). But the trouble is that at the time of such delivery the mortgagor did not own the land, and therefore nothing passed under the mortgage. She had conveyed to her daughter. The decision of the learned judge that the deed to the daughter was void for a suspension of the absolute power of alienation for 21 years, was erroneous. The suspension was void, but not the conveyance. The grantee took the fee free of the illegal ‘condition. A void or unlawful condition to-a conveyance in fee, like a repugnant one, does not affect the conveyance. And a forfeiture cannot be predicated upon such a condition (Washb. on Beal Prop. b’k 1, chap. .14, art. 6 ; Roosevelt v. Thurman, 1 Johns. Ch. 220 ; Schermerhorn v. Negus, 1 Den. 448; De Peyster v. Michael, 6 N. Y. 467; Oxley v. Lane, 35 id. 340). The judgment should be reversed. Woodward, Jenes and Etch, JJ.s concurred. ' Judgment reversed and new trial granted, costs to abide the final award , of costs.