#### Mary L. E. Tucker, Respondent, *v.*Aaron S. Tucker and Others, Defendants, Impleaded with Samuel Morgan, Appellant.

Third Department,

November 13, 1907.

■ Real property — descent — estate of mother of intestate — conveyance reserving maintenance of grantor — effect of death of grantee — transfer of grantor’s interest—warranty deed.— after-acquired interest.

Under the Statute of Descents (Real Prop. Law, § 285) when an intestate leaves a mother, sisters and brothers and children of a deceased sister, the mother takes a life interest only with remainder over to the other heirs.

When a mother conveys to her daughter reserving the right to maintenance' to be furnished by the grantee upon the lands for her natural life, during which the lands cannot be sold without the grantor’s consent, the death of the grantee • does not deprive the grantor of the benefit of the reservation, but the value thereof remains an equitable lien or charge enforcible against the property.

Although on the death of the grantee intestate the grantor, under the Statute of Descents, became vested with a life estate, her equitable lien for maintenance *309was still an incumbrance upon the .entire property including her life estate and the remainders.

Hence, when such life tenant having also an equitable lien on the whole property for maintenance conveys by quitclaim in form covering the whole property, her grantee, or his successors in title, is entitled to a lien on the lands for the value of the maintenance from the time of the conveyance to the death of the grantor,. and on a partition of the lands it is error to hold that all the grantee’s title and interest determined on the grantor’s death.

A title subsequently acquired by one who has conveyed with covenant of warranty inures to the benefit of his grantee, and on partition after the grantor’s death, it is error to hold that such after-acquired interest went to his widow and heirs.

Appeal by the defendant, Samuel Morgan, from an- interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 26th day of March, 1907, upon the decision of the court rendered after a trial before the court without a jury at the Warren Trial Term.

This is an action for the partition of a farm. Phoebe Stover, the original owner, conveyed the farm in 1876 to her daughter, Emma G-alusha. The deed contained the following clause: *“*The said party of the first part hereby reserves to herself the right of her .comfortable maintenance upon the within described premises in the family of the said party of the second part during her natural life, and also that the said party of the second part shall not sell or convey the said within described premises during the natural life of the said party of the first part without her .consent.”

In 1880 Emma Galusha died intestate leaving as her heirs her mother, said Phoebe Stover, two sisters, a brother, and children of a deceased sister. In 1892 and 1893 two of Emma Galusha’s sisters conveyed their interests in the property to plaintiff’s husband, Aaron S. Tucker, and he subsequently conveyed to plaintiff. 'Hence, her source of title.

In 1881 Phoebe S.tover executed a quitclaim deed to Daniel Galusha, the husband of her deceased daughter Emma, in form cov■ering the whole property. He paid her $100 in cash-and gave her a mortgage on the property for $800 payable in sixteen annual installments of $50 each, without interest. Phoebe Stover died in 1905 at the age of ninety-three years.

In 1888 Daniel Galusha executed a warranty deed of the entire *310property to James K. Kenyon. Kenyon in 1890 gave a warranty deed back to Gal.usha’s second'wife and she in 1893 gave a warranty deed to .Samuel Morgan, this appellant. Morgan, as part of the consideration of his purchase, paid a balance due on the above-mentioned mortgage of Phoebe Stover which at . that time had been assigned to plaintiff’s husband. All -of the aforesaid deeds were promptly recorded.

In 1893 and after the said deed to Morgan, Daniel Galusha acquired by purchase from two of the heirs of Emma Galusha, deceased, an undivided one-sixth part of the premises which the interlocutory judgment adjudges to belong to the two children of Galusha subject to the dower right therein of his widow, Maggie Galusha, he having since died.

Said judgment excludes the appellant from all right and interest in and to said premises.

*H. Prior King,*for the appellant.

*George R. Salisbury,*for the respondent.

Cochrane, J.:

•It is obvious from the foregoing statement that the appellant' only has such title to the farm as Mrs. Stover could convey after the death of her daughter, Mrs. Galusha, except as. to the undivided one-sixth interest hereafter discussed. Under the Devised Statutes (1 R. S. 752, § 6), which were revised in the Real Property Law (Laws of 1896, chap. 547, § 285), Mrs. Stover inherited from Mrs. Galusha only a life estate in the property with the remainder to the other heirs of the latter.

But in the deed from Mrs. Stover to Mrs. Galusha the former reserved the right to her comfortable maintenance on the farm. This right was of a personal character. It was clearly expressed in the deed that such maintenance should be in the family of Mrs. Galusha and this idea was farther emphasized by the provision that the latter should not convey the premises during the life of Mrs.. Stover without her consent. When Mrs. Galusha died such arrangement was no longer capable of execution in the manner contemplated by the parties. That fact,' however, did not deprive Mrs. Stover of the benefit of her reservation. She continued to be *311entitled to her maintenance and the value thereof was an equitable lien or charge enforcible against the property. *(Borst*v. *Crommie,*19 Hun, 209 ; *Loomis*v. Loomis, 35 Barb. 624; *Tolley*v. Greene, 2 Sandf. Ch. 91.)

The' right of maintenance reserved by Mrs. Stover for herself in her deed to her daughter and her statutory life estate as heir of her daughter should not in my judgment be either added or subtracted. But the equitabli charge for the maintenance of Mrs. Stover'constitute'd an incumbrance on the entire property, and both her life estate and the remainder, in proportion to their respective values, were subject thereto. Mrs. Stover as life tenant had the use, control- and management of the farm while she lived and it. was of no consequence to the remaindermen • whether she lived on the farm or elsewhere. The reasonable value of her maintenance, according to her station in life and of the general character contemplated in her deed to her daughter, was chargeable against the interests of the remaindermen to the extent above indicated.

Both these rights, viz., the equitable right of Mrs. Stover to have the value of her maintenance enforced against the farm and her life estate in the farm, were transferred by her conveyance to Mr. Galusha and by the subsequent mesne conveyances to appellant. The error of the court below consists in having ignored the reservation of Mrs. Stover in her deed to her daughter and treating the case as if the appellant had only acquired the statutory life estate of Mrs. Stover. It is evident from what has been said that the appellant has a present lien on the property for some part of the value of Mrs. Stover’s maintenance. As the value of the life estate was not established at the trial, and as there is no finding as to the value of the farm, the amount of such lien of the appellant cannot now be stated. But it was clearly error for the trial court to find as it did “ that upon the death of said Phoebe Stover all the right, title and interest of said Samuel Morgan in said premises ceased and determined,” and to render judgment accordingly.

The judgment is also wrong in adjudging that the undivided one-sixth part of the premises acquired by Daniel Galusha after his conveyance thereof belongs to his widow and heirs. He had previously conveyed the farm by a warranty deed purporting' to convey the entire title and the appellant succeeds to the title thus *312conveyed. It 'is settled that a title subsequently acquired by a party who has granted land with covenant of warranty inures to the benefit of his grantee. *(House*v. *McCormick,*57 N. Y. 310; *Sweet v. Green,*1 Paige, 473 ; *Kellogg*v. *Wood,*4 id. 578.) The appellant is, therefore, the owner of such undivided one-sixth interest.

The interlocutory judgment must be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Interlocutory judgment reversed on law and facts and new trial granted, with'costs to appellant to' abide event.