55 N.Y.S. 113 | N.Y. App. Div. | 1898
The judgments docketed against Edward McKaharay, after he conveyed the property in question to his wife, Alice, were not liens of record upon the land. The conveyance was good inter partes, and the fee consequently vested in Alice. If, however, the conveyance from Edward to Alice was made with intent to hinder, delay or defraud the plaintiffs in these judgments, the latter, at their option, could claim a lien in avoidance of the record title. As to them the deed was voidable. The question is: Should the plaintiff (Alice’s mortgagee), in foreclosing his mortgage, have made these judgment creditors of Edward parties defendant? It is clear that, so far as the record spoke, they were not necessary parties. They had apparently no lien upon or interest in the premises.
It is said, however, that they may at any time assert such lien ; that, in fact, if the deed from Edward to Alice was made with intent to hinder, delay or defraud them, they actually had such a lien when the foreclosure suit was commenced (Smith v. Reid, 134 N. Y. 577), and, consequently, that they have not been cut off. The postulate here is a bare possibility. It did not suffice to make them necessary parties. The plaintiff, in foreclosing his mortgage, was not bound to go behind the record, or to inquire as to the existence of judgments against his mortgagor’s grantor, docketed after the latter was divested of title. ETor was he bound, even if apprised of the existence of these judgments, at his peril to inquire into questions, upon the solution of which the judgment creditors’ right to a lien depended. The present action was commenced in June, 1898. Prior thereto three of these judgment creditors had instituted actions to set aside the deed from Edward to Alice as against themselves; and they were very properly made parties defendant herein. By the commencement of these actions and the filing of a Us pendens therein, these judgment creditors exercised their option to avoid the deed from Edward to Alice, and placed upon record a
We may add that, even if there had been something more than notice of a claim, even if it had clearly appeared that the three judgment creditors’ actions had ripened into judgment, the conclusion would have been the same. Each creditor’s bill stood upon its own basis. The deed might be voidable as to one and not as to another. ¡¡Notice that it had been set aside as to one was no evidence that it was void as to another. One judgment creditor’s debt may have accrued prior to the making of the questioned deed ; another may have come into existence subsequently. Tlie facts and proofs in one case may be different from those in another. It would be a dangerous rule, one that would lead to great uncertainty, which would require an attorney employed to foreclose a mortgage to go outside of the record, and, at his client’s peril, correctly weigh such possibilities. The alternatives before him would
We fully recognize the rule that a purchaser at a judicial sale is entitled to a marketable title— one free from reasonable doubt. He should have a title that will, as Martin, J., said in McPherson v. Schade (149 N. Y. 16), “ enable him to hold his land free from probable claim by another, and one that if he wishes to sell would be reasonably free from any doubt which would interfere with its market value.”
W e think the purchaser here will get just such a marketable title. That he will ever be disturbed is a mere possibility — a very improbable and remote contingency — one so slight and trivial that it ought not to relieve him from his purchase. (Cambrelling v. Purton, 125 N. Y. 610.)
We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the purchaser’s motion denied, with ten dollars costs.
Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.
Order' reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.