13 N.Y.S. 209 | N.Y. Sup. Ct. | 1891
The defendant appeals from a judgment for plaintiffs in ejectment, rendered on a trial before the court without a jury. Both parties claim title under Isaac Lyons, who in 1837 gave a mortgage for $200 to the commissioners of loans of Ulster county upon a parcel of land described by metes and bounds, courses and distances, situate in Marblehead, Ulster county, containing 56| acres, less a lot of 14 acres out of the same, theretofore conveyed to Isaac and Henry Lyons. January 26, 1860, Isaac Lyons conveyed 25 acres of the mortgaged premises, describing them, to his son Simon P. Lyons; and also on the same day conveyed other parcels thereof, said to be 19^ acres, to his other sons, Michael and John. Simon P. then agreed to assume and pay the mortgage to the loan commissioners as part of the consideration of the deed to him. In 1876, Simon P. conveyed the 25 acres to the defendant. Before doing so he paid $100 upon the mortgage in question, and procured from the loan commissioners a lease of his 25 acres from the lien of .the mortgage, thus leaving the portion sold to Michael and John Lyons the principal security for the mortgage. Lucas Barley, in 1878, became the owner of the latter parcel, 19J acres. Lucas Barley then brought an action against the present defendant, Boosa, Simon P. Lyons, and the loan ■commissioners, and recovered judgment therein adjudging that the release aforesaid is vacated and set aside, and that the said mortgage is not primarily a lien upon the said 19J acres, but, as between the said plaintiff Lucas Barley and the defendants Simon P. Lyons and Luke I. Boosa, is a lien and incumbrance on the said 25 acres only. Lucas Barley died in 1883, leaving his son Jacob H. Barley his sole devisee, and said Jacob died in 1886. The plaintiffs are executors of his will. Default having been made in the payment of the said mortgage, the loan commissioners foreclosed the same under the statute, and made sale of the 25 acres, February, 1885, to Granville Boice, who in the same year conveyed them to the plaintiffs. The plaintiffs, by their complaint, sought to recover the said 25 acres; but the trial court held, upon the evidence, that the 14 acres reserved from the loan commissioners’ mortgage was part of the 25 acres conveyed by Isaac Lyons to Simon P., and by him to the defendant, and directed a recovery for the remaining 11 acres.
The defendant urges that there was no proof that the lands described in the' complaint were part of the premises covered by the mortgage foreclosed. The trial court, upon evidence, illustrated by maps of the various parcels, found that 11 acres of the land described in the complaint were embraced in the mortgage. The court, in response to the defendant’s requests, found what premises were included in the mortgage and what were excepted. We conclude that the parcel not excepted is the parcel for which the recovery was directed, and, although it is difficult for us to identify this parcel as part of the mortgaged premises, we assume that the court, with the aid of the witnesses who were familiar with the premises, was free from the like difficulty.
The defendant further contends that, as the complaint described 25 acres in a single parcel, a recovery of 11 acres thereof could-not be had without an amendment of the complaint. This cannot be so. The plaintiff can recover to the extent that he makes good his title. The judgment should identify the parcel recovered, thus making it distinguishable and separable from the parcel not recovered. It cannot be necessary to amend the com
The defendant further urges that the mortgage sale was void, because the loan commissioners advertised for sale less than the whole premises described in the mortgage, and included 14 acres not embraced in it. The judgment in the action in which Lucas Barley, the owner of the parcel embraced in the mortgage, but excepted from the foreclosure, was plaintiff, and the loan commissioners, the defendant and his grantors were defendants, was an adjudication, in effect, requiring the loan commissioners not to proceed primarily against the parcel embraced in the mortgage and owned by Lucas Barley, and to proceed against the 25 acres held by the defendant. The former adjudication made the exception proper, and the rights of defendant as to the -14 acres not covered by the mortgage were protected upon the present trial. The former judgment was a substantial direction to the loan commissioners to foreclose as to the whole 25 acres, and we do not think the defendant, a party to that judgment, can complain of a procedure, merely as such, when he is permitted to escape from so much of its results as can unjustly affect him. If the procedure was technically at variance with the statute, it was by virtue of an estoppel of record by which he was bound. Boice was the purchaser at the foreclosure sale, and then sold the premises to the plaintiffs. Defendant claimed to hold the premises adversely to Boice, and therefore alleges that Boice’s deed to the plaintiffs was void for champerty. To avoid a grant for champerty, the grant must be delivered when the lands are in “the actual possession of a person claiming under a title adverse to that of the grantor.” 3 Bev. St. (7th Ed.) p. 2196, § 147. The defendant had had a title under the mortgagor subject to the mortgage. Boice had acquired the mortgage title, which extinguished the defendant’s title. Whatever claim, therefore, the defendant made to the 11 acres was under an extinguished title, and not under an existing adverse one. Sayres v. Rathbone, 9 Abb. Pr. (N. S.) 277; Jackson v. Collins, 3 Cow. 89; Jackson v. Bush, 10 Johns. 223; Webb v. Bindon, 21 Wend. 99; Cook v. Travis, 20 N. Y. 400. This view also results in disallowing the claim made by defendant, under section 1531 of the Code of Civil Procedure, that the value of his buildings should have canceled the damages. He did not build any while holding under “color of title adversely.” The plaintiffs took title from Boice to themselves by deed, wherein they are described as executors of the last will and testament of Jacob Barley, deceased. We suppose a grantee can annex any description to his name that pleases him, or that tends to show that he takes title as trustee for another, however imperfectly he may define the character of the trust. The plaintiffs add the like description to their names in the title to this action. They do not sue as executors; the words are a mere descriptio persona. Merritt v. Seaman, 6 N. Y. 172; Stilwell v. Carpenter, 62 N. Y. 639. The plaintiffs hold the title. The descriptive words added to their names, both in the deed and in the title of this action, may be useful hereafter in protecting the rights of the persons they were intended to benefit, and the defendant has no valid objection to their use.