So far as this appeal presents the claim that respondent was divested of title to the premises in dispute, by virtue of the judgment rendered upon the foreclosure of the mortgage held by Huldah H. Clapp, the decision in Clapp v. McCabe (84 Hun, 379) must be regarded as-.conclusive thereof in his favor,, and this question need *286have no further consideration by us. Appellant claims to have met and .overcome the obstacle which this case raised, by a deed dated April 20, 1883, and executed by respondent, his mother, and the other children of' Hawley D. Clapp, Sr., to Henry A. Callan, and that by subsequent conveyance from Callan and others appellant became vested with respondent’s title to the premises. This claim presents the substantial question for our determination. By appellant, it is claimed that the deed to Callan vested in him an absolute fee, and the sole beneficial interest. By respondent, it is claimed' that the evident purpose of the deed was to create a trust for the benefit of the grantors; that the trust, not being authorized by the statute,, was void, and the legal title remained in the grantors, sub-, ject to the execution of the trusts, expressed or implied, from the terms of the deed, as a power, if it could be said that a power in trust was created. The habendum clause of the deed, to Callan is to' “ liis heirs and assigns, to his and their own proper use, benefit and behoof forever; ” and another clause of the deed declares that the instrument shall be irrevocable by any act of the grantors. Appellant claims that this is conclusive as determining the nature and extent of the estate granted, and is unaffected and uncontrolled by the premises or other clauses of the. .deed. Respondent insists, in answer, that the recitals in the deed, the. premises and the other clauses control' the habendum. It may be noted here that the latter clause scarcely .•adds anything to the- legal effect of the deed, for the granting clause' is to Callan, “his heirs and assigns.” • If there be left out of consideration the recital’s and the declared purpose in the granting •clause, and other terms of the deed, there appears to be no repugnancy between the premises and the. habendum,- for in both the grant purports' to be to the grantee, “ his heirs and assigns.” The repugnancy exists in this, that the whole provisions of'the instrument .are inconsistent with any intention to grant the absolute fee and sole beneficial interest to the grantee. • The question, therefore, presents itself, must all these provisions be disregarded,.treated as surplusage, .and made to yield to the habendum clause, or may' the latter be •qualified,, limited and controlled by the former ? A consideration of some of the general rules for the construction of deeds may enable us to solve the problem more easily. In ancient conveyancing lore, the office of the habendum was to “ determine the interest granted, *287of to lessen, enlarge, explain or qualify the premises.” Modern Use has changed its significance. It is now the office of the premises rightly to naihe the grantor and grantee, and to comprehend the ■certainty of the thing granted.” And the habendum has become in most cases a mere form where the estate is mentioned in the premises. (2 Burrill’s Law Diet. [2d ed.] 2326.)
If the habendum cannot be reconciled with the premises so that full effect may be given to both, it must give way and the latter will stand. (Mott v. Richtmyer, 57 N. Y. 49-63.)
“ Where the granting clause of a deed is silent as to the estate intended to be conveyed, resort may be had to the habendum to ascertain the intention of the grantor in that regard! It cannot be used either to enlarge or diminish the estate specifically defined in the granting clause, for if it is repugnant to that clause it is void, but if that clause is either silent or ambiguous, then the habendum becomes the standard by which the estate granted must be'measured.” (Havens v. Sea Shore Land Company, 47 N. J. Eq. 366.)
But like the Words in a contract, all the words employed in the -deed should be given some effect if possible, and if consistent with the evident purpose and operation of the deed. (Havens v. Dale, 18 Cal. 366.)
The settled rule requires that the construction of written instruments should be as near to the minds and apparent intention of the parties as is possible, and- complies with the statutory declaration (4 R. S. [8th ed.] 2461, § 2) that in the construction of conveyances it shall be the duty of courts of justice to carry into effect the intent of the parties so far as such intent can be ascertained from the whole instrument, and is consistent with the rules of law. (Bennett v. Culver, 97 N. Y. 250.)
■ This rule is made imperative upon jüdióial tribunals and cannot be evaded where the intention of the grantor is made clearly apparent- by the language of the-conveyance. (Coleman v. Beach, 97 N. Y. 545.)
' It is said in this case: “ In the case of repugnant dispositions of the same property contained in the same instrument, the courts are, from necessity, compelled to choose between them ; but it is only when tliey are irreconcilably repugnant that such a disposition of the question is required to be made. If -it is the clear intent of the *288grantor- that apparently inconsistent provisions .shall all stand, such limitations upon and interpretations-of the literal signification of the language used must be imposed as will give some effect, if possible* to all of the provisions of the deed.” (553.) • No invariable rule of construction can be laid down. Modern decisions tend to uphold conveyances and give effect to the intention, of ■ the parties .regard-, less-of-technical rules of .construction. - An illustration is found.-in 2 Devlin on Deeds (.§ 855). Effect is to be given “ to the words*, expressions and provisions, which carry out the evident intent of the instrument rather, than those others which aré inconsistent therewith, and either to reject such others. as surplusage or repugnant,: or -to. mould them into consistency with the intent, provided in so doing nó rule ef law is violated.” And, therefore, -the intent- when, apparent and not repugnant to. any rule. of law, will control the technical words ; for the intent and .not the Words is the essence of every agreement. (Tucker v. Meeks, 2 Sweeny, 736.)
In the light of these rules this instrument is to be examined-.and the intent of the parties, so far as such intent can be gathered .from the whole instrument aimed at and given effect, if the same be not inconsistent with. any rule, of law,. It is- at once evident that-if it was the intention of the grantors to vest the fee and sole beneficial interest in- the whole-estate, both--in law ¡and. equity in Callan,■ this instrument is most remarkable, and extraordinary means have been employed to- accomplish the result intended. The grantors ■ had become possessed by inheritance and -otherwise of ,a large estate -consisting of real and personal property, and if this construction obtain we are required to say that being actuated by a desire to compose the family difficulties and to rid themselves of the cause of all their-troubles, they granted, conveyed and assigned the- whole to a stranger, Callan, his - heirs- and assigns,--to have and to hold to-their own proper use, benefit and behoof, forever. 'This is quite remark- ■ able as an illustration of how the “ root of evil may be- summarily dealt with and at the same time exercise extreme benevolence, It would,'it seems, lessen' the satisfaction of the grantors to make- a simple conveyance, and so they recite all their grievances, and differences and express the. spirit that actuates them, and .thus inform the grantee why they transfer all of their property to- him for a dollar “ and other good and valuable considerations,” from *289which it may he inferred that they were as good and as valuable as the specific consideration stated. The instrument recites that it was thought proper, advisable and desirable that all said litigations (not the mortgage foreclosure, for that had before ended in the referee’s deed) and differences should be brought to an end and a fair and proper adjustment thereof arrived at. In order to carry out said adjustment and composure of the family differences and litigations, what did they do % According to appellant’s interpretation they gave it all to Callan and thus ended the matter at a single stroke. And he accepted it as willingly, but, it seems, only “ for the purposes herein expressed,” and he covenanted that “ he will, so far as he reasonably can, carry out and effect the purpose hereinbefore recited.” Respecting the method and manner to be pursued in adjusting and settling all the differences, we receive no light from the instrument. What remedy in law or in equity the grantors had to enforce this covenant we are unable to say, and perhaps it is not important to know, as the grantee is bound to do it. It is argued that this declaration of the purposes for which the conveyance was made and accepted in no way interferes with the absolute beneficial use and disposition of the property by the grantee, since it is his own property and he may do with it as he pleases. . The grantors have absolutely transferred all their property to him, and they have retained no interest whatever recognizable in a court of law or equity.
This was the grantee’s position, if the appellant’s construction is to be sustained. But further. The grantors covenant “ to ratify and confirm, and do hereby severally ratify and confirm each, all and every act or acts done, or which may, should or conld be lawfully axul properly done, performed or executed by the said party of the second part, or by his duly authorized and appointed agent or attorney, under or by virtue of this instrument;” and then declare the instrument to be irrevocable. The instrument is silent as to what acts may be lawfully and properly done under and by virtue of it, except that they must have some relation to the express purpose of adjusting and settling differences, litigations, etc. For these purposes only was the deed made and accepted. If the true construction of the deed is to transfer a fee simple absolute, the declaration of irrevocability adds nothing to it. If, *290on the other hand, it merely creates a trust or a power in trust, it is irrevocable during the continuance of the trust or power, and these words are of no consequence. (4 R. S. [8th éd.] 2449, § 108.)
There is an insuperable difficulty in endeavoring to carry out and give force to the true intent of the parties, talcing all the provisions of the deed together, in reaching a conclusion that it was the intent of ■ the parties to transfer the absolute fee and sole beneficial interest to Callan. If we disregard these provisions we defeat the manifest intention of the. grantors. And this can be done only by strained construction, the application of subtle and unsubstantial definition and 'technical and arbitrary rules. It is wholly inconceivable and improbable, if such was the intention, that all these recitals should be made, and the purposes for which the transfer was made should be declared, and that the grantee should accept it for these purposes. We think it is more in harmony with the authority cited, and all the terms and conditions of the instrument taken together, to hold that the habendum clause should be limited and controlled by the other clauses and provisions in the deed.
In Syracuse Sav. Bank v. Holden (105 N. Y. 415) it was héld that a conveyance to B., his heirs and assigns forever, in trust for 0,, with power to sell or mortgage, vests no title in B., but simply a general power in trust for C. Where an unauthorized trust is attempted to be created the words “ heirs and assigns forever ” will not carry the fee to the grantee. (Heermans v. Robertson, 64 N. Y. 332 ; Heermans v. Burt, 78 id. 259.) And in the latter case it is queried whether the instrument created merely an agency for the management of the estate for the benefit of the grantor, or a power in trust, and, therefore, irrevocable.
By an ante-nuptial agreement the wife conveyed to her husband, his heirs and assigns, all her real and personal property, and constituted him a trustee thereof, to have the entire management, direction and control of the property; and the instrument was declared irrevocable; but it was silent as to the persons to be beneficially interested in the trust. It was held that no trust was created and that the husband took no title whatever. (Dillaye v. Greenough, 45 N. Y. 438.)
Nor is the mention of a nominal consideration material when it appears by the instrument itself that the intention was to create a *291trust or a power in trust and to convey no other estate or interest than was required for the purposes expressed. The mention of a nominal consideration was formal and unnecessary for the other parts of the instrument indicated with reasonable certainty the true character of the transaction. (Rockwell v. McGovern, 69 N. Y. 299.)
There was evidently no intention to give Callan a beneficial interest in the estate or to invest him with any interest or trust other than that required to carry out the purposes mentioned in the deed. The “ other good and valuable considerations ” may be considered words of formality so commonly used in legal instruments, or they may refer to the benefit and advantage that will inure to the grantors from the acceptance of- the trust or power and the undertaking of the grantee to carry out their wishes.
We may now inquire whether the instrument creates a trust authorized by the statute or whether it is good as a power in trust. It is clear that no valid trust is created by the instrument, and, therefore, no estate vested in the grantee as trustee. Where the trust declared is not one recognized by- the statute the title remains in the grantor, subject to the execution of the trust as a power. (N. Y. Dry Dock Co. v. Stillman, 30 N. Y. 194.)
Whether this deed creates an irrevocable power in trust is not, perhaps, necessary to consider. The main point before us is whether it operated to vest the legal title in Callan. It may be proper, however, to inquire into the nature, scope and intent of this supposed power in trust. When an invalid trust is sufficiently declared in the instrument the court will have no difficulty in enforcing the execution of the power according to the terms and conditions expressed. But where the supposed trust is of a vague,, indefinite and uncertain character so that the court cannot ascertain with reasonable certainty what the power really is that it is called upon to enforce, the power must fall. Here no doubt the grantors intended to create a sort of trust, but its terms and conditions and the nature and extent of the duties of the trustee and the particular acts he may lawfully perform are'of so vague and indefinite character that it would be impossible to enforce the trust as a power of alienation without resorting to parol proof. If one is established it must be by interpretation of the doubtful phraseology *292of a crude and imperfect document, and, if it exists, it is not the direct creation of the instrument itself, but proof would he essential to have it judicially established.
No power to sell, lease or convey is conferred by the instrument, and the Statute of Frauds declares that no trust or power over or concerning lands, or in any manner relating thereto, shall be created unless by act or operation of law, or by a deed or conveyance in writing. The trust must appear in writing, with absolute certainty as to its nature and terms, before the court can undertake to execute it; so that it may not be called upon to execute the trust in a manner different from that intended. (Dillaye v. Greenough, supra.)
It is essential that a sufficient intention to create a trust be expressed with a beneficiary named or that can be ascertained, and this must be fairly collected from the language used in the instrument. (Wilcox v. Gilchrist, 85 Hun, 1; Morse v. Morse, 85 N. Y. 53 ; Ward v. Ward, 105 id. 68.)
The object of the statute in limiting express trusts was to restrict them to cases in which it is necessary for the protection of those interested that the title or possession should be vested in the trustee. Where no such necessity exists the intent was that the trust should be executed as a power. (Heermans v. Robertson, supra)
Where, by the legal construction of the instrument, the sole purpose is apparent merely to create a trust, although such instrument be. an absolute conveyance in fee, such legal estate remains in the grantor, subject to the execution of such povrer, which is capable of being enforced in equity (Ford v. Belmont, 7 Robt. 97), the grantee becoming, if the duties imposed upon him are such as can be legally and properly executed, the trustee of a power. (N. Y. Dry Dock Co. v. Stillman, 30 N. Y. 194.)
And it is to be implied from the very nature of a trust or power that the grantee does not take for his own benefit (Dillaye v. Greenough, supra) .
Examined in the light of. the cases and the Revised Statutes relating to powers (4 R. S. [8th ed.] pp. 2444, et seq.), wliat is the nature of this power, if it be one, in what manner is it to be executed and by what means ? The instrument itself is silent. All we know is that it was made and accepted for the purpose of adjusting and' settling the differences and litigations mentioned^ and that in order to *293accomplish these purposes it was intended that the grantee should have some power of disposition over the property. And the implication seems clear that it was not intended that the grantee should exercise the power for his own benefit, for that would be inconsistent with the purposes declared. Confining ourselves to the instrument itself, no power to sell, convey, mortgage, charge or lease the property is conferred in terms. It may be “an authority to do some act in relation to lands,” but it is not stated in the instrument, nor does it otherwise appear, what acts the grantee may lawfully do or .properly perform. It is not a general power within the meaning of the statute, for it does not authorize “ the alienation in fee * * * to any alienee whatever.” N or is it a special ¡rower since it does not authorize the alienation of a less estate; nor designate the persons “ to whom the disposition of the lands . "x" * * is to be made.” In a sense it may be said to be special, i. <?., that whatever disposition of the lands may be authorized or confirmed, it shall be for the benefit of the grantors. Nor is it a beneficial power, for there are persons other than the grantee who have by the.terms of its creation an interest in its execution. Nor is it a case “ where an absolute power of disposition not accompanied by any trust ” is given to the grantee of the power, since no such power is expressed, and the deed was accepted for the purpose of accomplishing the “trust” or objects therein mentioned. Nor is the grantee enabled by the terms of the power to dispose of the fee for his own benefit. (§ 85.)
Was this property liable to the claim of the creditors of Callan? Was it not subject to the claims of the creditors of the grantors (§§ 93, 103, 104) either by suit or execution ? Is it a power in trust ? It is true that the trusts are not sufficiently defined so as to be" capable of being enforced by a suit in equity, and, therefore, strictly speaking, it may not be a power in trust within the provisions of the statute. Nevertheless, there was an evident attempt to create a trust or a power in trust for the grantee, and not to vest a beneficial power in the grantee. For this purpose, therefore, we may say that it is a power in trust in a general sense, though not such a one as is recognized by the statute, or enforcible in equity. Here - there are a “ class of persons, other than the grantee of such power ” designated, who would be “ entitled to the proceeds * * * or other benefits ” that might “ result from the alienation of the lands,” if it should be *294authorized or ratified by them as being “ lawfully and properly done by virtue of the instrument.” (§§ 94, 95.) If the power was sufficiently defined it would be imperative and enforcible for the benefit of the persons interested. (§ 96.) Whether the purposes of the instrument had been accomplished and the power had ceased when Callan undertook to make the conveyances, does not appear.
Having arrived at the conclusion that the instrument cre.ated ■ a power, if anything, in trust for the grantors, and not á beneficial power in Callan, let us inquire whether the conveyances in question were made by him to “ carry out and effect the purpose herein-before recited,” whether they were “ lawfully and properly done, performed or executed * * * under or by virtue of this instrument,” arid whether the grantees- acquired any title thereby.
Assuming that Callan had power to convey, did he, in fact, ever convey the premises here in question to Mortimer R. Clapp, through whom appellant derives his title? If not, then the appellant has acquired no title. It appears that on February 16, 1884, Henry A. Callan executed a conveyance of this property to one James T. Byrne, who, on the same day, conveyed to Cora Callan, the wife of Henry A. Both deeds expressed a nominal consideration, and they did not purport to be executed in pursuance or by virtue of any power. On July '22, 1884, Callan and wife executed a certain conveyance, expressing a nominal consideration, to Mortimer R. Clapp, but without referring to any power or power in trust. This deed contains a clause excepting and reserving from its operation that portion of the premises described in a certain release executed in 1863, reference thereto being made for a particular description of the portion of the premises so excepted. . It being conceded that the premises described in the complaint form a portion of the premises described in said release, it must follow that they were excepted from the operation of said deed from Callan and wife to Mortimer R. Clapp, and, consequently, that he acquired no title thereto which he could convey to the appellant. It will be observed that, as between Callan and his wife, the former had no interest in or power over the lands at the time of the conveyance to Mortimer •R. Clapp, for he had previously conveyed all his right, title and interest to her. ' Assuming, therefore, that Callan owned the ■premises, or possessed the power to convey them, and that the con*295veyance to his wife was a lawful or proper execution of the power, the title vested in her, and there it remains. It is evident from the record and documentary evidence in the case that the conveyance from the Oallans to Mortimer "R. Clapp -was not made, nor does it purport to have been made, in execution of any power or powers in trust, but solely in compliance with the judgment and direction of the court in a certain action brought by Mortimer to set aside a certain other conveyance from Huldali Clapp (the mother) to Callan, and the deed to his wife. It is also evident therefrom that the premises in suit were not involved in that action, since they are excepted from the conveyance made in compliance with the judgment.
Nor can we presume that the conveyance by Callan through Byrne to his wife, for a nominal consideration, was made to carry into effect “the purpose hereinbefore recited,” or that it was “lawfully and properly done, performed or executed * * * under or by virtue of this instrument.” If a power of alienation had been given in terms, it might be presumed, perhaps, that the power had been lawfully and properly executed in carrying out the purposes expressed. (Bissing v. Smith, 85 Hun, 568, 569.) But we cannot reasonably indulge in any such presumption here without also inferring or presuming the existence of the power itself. We cannot say, in the absence of proof, that the conveyance to Cora was an act properly done under the instrument, and to accomplish the purposes therein mentioned. We cannot perceive that the conveyance to the wife of the grantee of the “ power,” for the consideration of one dollar, was made for the purpose of adjusting and settling the differences, litigations, etc., mentioned in the instrument of April 20, 1883. She was chargeable, with notice of the terms and conditions of that instrument, and that they must be observed, or she could acquire no title. If the power to convey had been expressly conferred, it would not be necessary to recite or refer to it in the conveyance made in the execution of the power; but since it "was not conferred in terms, the purchaser took the title at her own risk. If the power existed by necessary inference or implication, its execution was restricted to the purposes expressed, and .it must be lawfully and properly done. Was not the defendant chargeable with notice of these matters by the records ? We think he was; he was put upon inquiry. What acts might be *296lawfully performed or executed, could only be ascertained by inquiry. Whether any particular conveyance ivas .such an act could not be-ascertained from the instrument itself.. And when we consider the most unusual character of the deed, transferring and assigning all the real'and personal property of the grantors, as devisees and legatees, with all its recitals and the declarations of the purpose of the making and acceptance of the instrument, we are bound to hold that a purchaser from the grantee of such a “power,” and all subsequent transferees must take- their conveyance at their peril. And it may be that the statement of a nominal consideration would be evidence of fraud. (2 Devlin on Deeds, §§ 1009.) It is, indeed, remarkable that any intelligent lawyer should pass such a title, or that any purchaser should accept it. It seems too plain for argument that the recitals in the deed to Callan, the declaration of the purposes for which it was made and accepted, and the restriction of the power to acts that might be lawfully and properly done or performed under and by virtue of the instrument, constituted notice to all subsequent purchasers from him. (Williamson v. Brown, 15 N. Y. 354; Judson v. Dada, 79 id. 380; O'Connor v. Waldo, 83 Hun, 491; Suarez v. De Montigny, 12 Misc. Rep. 263-265 ; Kirsch v. Tozier, 143 N. Y. 390; 2 Devlin on Deeds, §§ 1001, 1002, 1005.) A conveyance with a recital of its purposes and object is notice thereof, and the grantee takes subject to trusts implied as well as express. (Cuyler v. Bradt, 2 Caines Cas. 326.)
Assuming that Henry A. Callan was the owner of the premises by virtue of the instrument of April 20, 1883, he conveyed all his interest to Cora, and if there is any outstanding title to these premises, as we have seen, she owns it. But, as we think we have established, Callan really had no such interest and no power to convey to his wife, Cora; consequently the title remained in the Clapps, the one-seventh interest in the plaintiff, and defendant Byrnes never received any conveyance conveying title to these premises.
The infancy of the defendant does not become important, in view of the conclusion we have reached, as there was no deed to ratify,confirm or avoid. There is nothing upon which to base the charge of fraud alleged in the answer. It is reasonably clear that plaintiff may have supposed that his mother, Huid ah H. Clapp, obtained title to the premises by the foreclosure and the referee’s deed, and *297lie had good reason to believe that she had conveyed them to Mortimer, though in fact they were excepted. But it would be a most difficult thing for him to ascertain, as it now is for skilled lawyers, among such bewildering transactions, to what the exception particularly related. He did no affirmative act to mislead, and we are unable to find any principle in the doctrine of equitable estoppel which precludes him from asserting his rights which were attempted to be taken from him during his minority. Defendant Byrnes never received any conveyance of these premises from any person having the legal title, or a power to transfer it.
Plaintiff supposed and believed that Mortimer owned the property, and defendant had notice by the records that he did not. By this record he was bound. (Cambridge Valley Bank v. Delano, 48 N. Y. 326 ; McPherson v. Rollins, 107 id. 316 ; Kirsch v. Tozier, supra.)
We conclude, therefore,
First. That the habendum clause in the deed must yield to the other jiro visions of the instrument of April 20, 1883, and that no beneficial estate vested in Callan by virtue of that deed.
Second. If anything, the deed created a power in trust in Callan for the benefit of the grantors named therein.
Third. In fact, Calían never had any title to these premises that he could convey, and never conveyed them, and the title to the property in suit is now in the plaintiff.
Fourth. That Byrnes, the defendant, was put on inquiry concerning his source of title when he received the deeds, and such inquiry would have shown that the persons assuming to convey had no title to the premises, or power to convey them.
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment in both actions affirmed, with costs,