1 N.Y.S. 421 | The Superior Court of the City of New York and Buffalo | 1888
This is an action in ejectment for the recovery of certain lots of land, formerly a part of Harlem commons'. A verdict for plaintiff was rendered by instructions from the court, and an order was subsequently made, under stipulation of counsel, that the verdict should be set aside, and that a verdict should be entered for the plaintiff, subject to the opinion of the general term, that-Elizabeth B. Andrews, an infant, is the owner of the real estate described in the amended complaint, and that the plaintiff, as guardian, is entitled to the benefit of said real estate. Both the plaintiff and the defendant claim title, but in different ways, through William O. H. Waddell, general assignee in bankruptcy and receiver of the assets of Ebenezer L. Williams, a bankrupt, deceased. The real estate here in dispute belonged to this Ebenezer Williams before his bankruptcy, in 1843, and had been mortgaged by him for the sum of $750 to John Finley and Benjamin Andrews, both deceased; and the main contention in this case will be found to be whether or no an action to foreclose that mortgage, brought by the executors of Benjamin Andrews against the said Waddell, as general assignee in bankruptcy, in the supreme court of this state, was well brought, and the judgment in favor of the plaintiffs therein valid, and the sale thereunder in September, 1856, effectual to vest the title in the purchaser. If the proper answer to this question be in the affirmative, it sustains the title of the plaintiff. The defendant, on the other hand, denies the validity of that judgment and sale in foreclosure, and claims title, under a sale of the mortgaged premises to himself by the said assignee in bankruptcy, under deed dated January 13, 1863. In addition to this deed of the premises, he relies on an assignment to himself by the administratrix and heirs at law of John H. Finley, one of the mortgagees, by which deed and assignment all their rights to the mortgaged premises, and to the bond and mortgage, were conveyed. If this deed and assignment be valid and effectual, the defendants’ contention should prevail. The burden of proving her title rests on the plaintiff.
Before considering this cardinal issue in the ease, a preliminary objection, made by the defendants, calls for consideration. It is contended that this action should have been brought, not in the name of the guardian of the minor, but in the name of the minor as plaintiff, and that the complaint should have been dismissed on that account. The general term of this court, in its opinion heretofore rendered in this case, considered and overruled that objection. See, also, Cagger v. Lansing, 64 N. Y. 417, in which an action so brought was sustained.
The defendant’s third objection, that, even if the judgment were valid, yet the sale was void, is not sustained. The defendants contend that the only office of the foreclosure suit in this case was to establish the lien, and determine the amount due, and that it had no power to decree a sale, because, by the decree in bankruptcy, it was removed out of the jurisdiction of the state court. The authority on which the defendants rely in support of that position is Walling v. Miller, 15 N. E. Rep. 65, (Court of Appeals, January 17, 1888.) This case is not authority for the defendants’ argument, and has no bearing on the case at bar. It holds that where a receiver is appointed of chattel property, two days after levy of an execution against the judgment debtor, the owner of the property, the sale of the property under this execution, without leave of the court appointing the receiver, and the taking of the same out of the possession of the receiver, was unlawful. In the ease at bar the property was real, not personal, and situate in the state of Hew York. The mortgage was a specific lien on that property, and all that the receiver in bankruptcy took by virtue of his appointment was the equity of redemption. The existence of the mortgage unpaid, gave the mortgagee a lien on the premises, constituting a valuable property, including the right to foreclose in the state court, and sell in order to obtain payment, and that property could not be taken without due process of law. The judgment in foreclosure being held to be valid, it follows that the sale of the property under the judgment was also valid, in the absence of any attempt, by affirmative action, before any tribunal, to set it aside.
The fourth objection, that the sale was unauthorized because the property was, in contemplation of law, out of the state, is not sustained. The premises were and are, both actually and in contemplation of law, in the city of Hew York. The fifth and sixth objections are overruled.
The seventh objection is that the clerk had no power to enter a judgment in the action of Lapaugh v. Finley’s Adm’rs, except on proof of service of process and of failure to answer. The case of Read v. French, 28 N. Y. 285, cited by defendants, is not in point. There it did not appear in what manner service was made, whether it was personal or by publication. In the action here in question, personal service is admitted. Any mere irregularities are covered by the judgment itself.
The ninth objection, that the assignment by the receiver, Kendall, to the executors of Andrews, was an assignment of the mortgage only, is overruled. There is no evidence in the case that the bond did not go with the mortgage, or that the bond was, at the time of the assignment, in any other hands but
The tenth objection is overruled. The statement of the case shows that all the interests, both of Benjamin Andrews and John H. Finley, the original mortgagees, vested in the executors of Andrews.
The eleventh objection is overruled. The case of Sanford v. Pollock, 105 N. Y. 452, 11 N. E. Rep. 836, cited by the defendants, relates to the question of liability of a married woman for rent, on a lease signed by her husband on her behalf, but without any evidence of his authority to bind her. It has no bearing on the case at bar.
These are the only objections which have seemed to me to require special .attention or notice. The others are overruled. The verdict for the plaintiff should be sustained, and judgment entered that the infant, Elizabeth B. Andrews, is the owner of the real estate in question, and that the plaintiff, as guardian, is entitled to the benefit of the same.