Booker v. Booker , 104 N.Y.S. 21 ( 1907 )

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.