Kahn v. Chapin , 91 N.Y. Sup. Ct. 541 ( 1895 )

PER CURIAM.

At the date of the trial, 28 years had elapsed since the trustee purchased at the mortgage sale, 22 years had passed since the testator’s youngest daughter became of full age, and 13 years had run since the defendant’s father acquired his title. All of the daughters are now living, except one, who was not a minor at the date of the foreclosure. The trustee is also living, is financially responsible, and is still engaged in administering the

trust During all this time the action of the trustee has never been questioned. The premises were not sold by his act or procurement, but pursuant to a mortgage executed by the testator: and the mere fact that the trustee personally purchased the property at a foreclosure sale does not render his title void, but voidable only at the election of the beneficiaries, and the title of the trustee and of his grantee may be confirmed by acquiescence and the lapse of time, as well as by the express act of the beneficiaries. Harrington v. Bank, 101 N. Y. 257, 4 N. E. 346; Lewin, Trusts (8th Ed.) 495. It is not asserted that the property did not sell for its full value at the mortgage sale, and it expressly appears that the surplus money was recovered by the trustee in a proceeding to which the widow and all of the children were parties. The beneficiaries, having knowledge of the sale, and having received the benefit of it, and acquiesced for so many years, would not be permitted to disturb the title of a purchaser, but would be left to their remedy against the trustee, if they have any cause for complaint against him. Neither litigant had. declared the contract abandoned, or had absolutely refused to perform it, until the trial was concluded. When the evidence was all in, and the state of the title developed, the plaintiff withdrew his objections, and offered to take the title; and it was then too late for the defendant, as a matter of right, to refuse to perform his contract. The alleged defect, which, under the circumstances, we think is not a substantial one, existed when the defendant executed the contract and covenanted to warrant the title to the plaintiff; and we think the court did not err in compelling the defendant to perform his contract. The judgment should be affirmed, with costs.