180 A.D. 659 | N.Y. App. Div. | 1917
This is an appeal by the defendants from a judgment entered in Kings county June 16, 1916, in favor of the plaintiff, enjoining the defendants from using in any way for railroad purposes, or trespassing thereon, a certain strip of land going through two lots owned by the plaintiff in the .borough of Brooklyn, and commanding the defendants to remove therefrom all tracks, ties, sleepers, fences and other appurtenances, the strip of land being a portion of the roadbed of the defendants’ railroad, and granting the plaintiff judgment against the defendants for past damages in the sum of $594.34, together with costs, and staying execution of the judgment for thirty days to give the defendants an opportunity to institute condemnation proceedings.
The material facts are undisputed and are the following, being stated in the findings of the decision and in certain granted requests by defendants to find. On March 27, 1889, Joseph S. Story was the owner and possessed of a farm including the premises here in question. There were then upon it three outstanding mortgages, which subsequently, in 1901, were foreclosed, such foreclosure resulting in the usual referee’s deed to one McNulty, but none of the defendants was a party to that foreclosure and, therefore, none of their rights, if any, in the premises were thereby extinguished.
When said contract was made in March, 1889, the defendant, the Prospect Park and South Brooklyn Railroad Company, was the owner, by deed or condemnation proceedings, of the sections of its right of way adjoining the said Story farm on either side. In about 1902 one of the intermediate grantees from McNulty divided the property into lots and mapped the same as such, and the deed to plaintiff purported to convey two of those lots. The map of such division did
There was no direct evidence introduced showing that the balance of the purchase price under the said Story contract, namely, $700, had or had not been paid, although it was found that the first payment of $1,000 thereof was actually made. Moreover there was no proof or finding that any tender of a deed to the railroad company of the premises described in that contract, or demand upon it for such balance, had ever been made by Story or by any of his successors in title. It appears that Story made a map of his farm showing it in lots, which indicated the railroad as running according to the said filed map of the railroad company, but that the railroad as actually located varied some
It is apparent, therefore, that the decision rests mainly upon the latter ground. I think that the learned trial justice was mistaken at least as to that ground. It seems to me that as the plaintiff here is seeking equitable relief, he cannot rely upon the Statute of Limitations to maintain affirmatively his claim. The trial justice in his opinion cites, as authority for his such conclusion, several cases. Of them only two, viz., Morey v. Farmers’ Loan & Trust Co. (14 N. Y. 302) and Griswold v. Little (13 Misc. Rep. 281), are cases in which the contract vendee had by the terms of the contract been given possession of the premises and had taken such possession. In the Morey Case (supra) the action was brought by the vendee to obtain a decree for specific performance, and it was held that the passage of the Statute of Limitations’ period of twenty years, barring an action to recover the balance of the purchase price, afforded the plaintiff no presumption of payment thereof to enable him to maintain his said action,
In the other, the Griswold Case (supra), former Mr. Justice Brown, once presiding justice of this court, held at Circuit that in an action of ejectment such a contract vendee, who had been in possession for thirty years, could not defend against ejectment without affirmatively proving that he had paid the balance of the purchase price. The opinion of that justice at its close expresses the caveat that had the defendant in that action defended under the claimed right of a vendee in possession under such a contract and not under a claim of absolute ownership, it would have been incumbent upon the plaintiff to establish that defendant had been put in default by a tender of the deed (p. 286). After the discovery of the said Story contract as above recited, defendants here were permitted to amend and did amend their answers so as to allege and stand upon such right of possession. It would seem, therefore, that under that very opinion the defendants here should have prevailed upon the ground that they had not been put in default by a tender of the deed in execution of such contract. It may be added that the decision of Mr. Justice Brown in the Griswold case gave to the defendant the right to apply to amend her answer so as to make such equitable claim (p. 287). The briefs do not advise us as to the ultimate course of that action.
The counsel for the appellants cites and relies strongly upon the case of Titcomb v. Fonda, J. & G. R. R. Co. (38 Misc. Rep. 630), a decision and opinion at the Fulton Special Term, and the opinion of the trial justice distinguishes at some length this case from that, chiefly, however, upon the ground that in that case the contract fixed no exact time for the delivery of the deed and the payment of the purchase price. That case was very similar to the instant one, except that the action was in ejectment, and that the contract under which the railroad took possession, as above stated, did not
It may be noted, in passing, that the decision of this court in the case just cited, to the effect that, although the defendants in their answer in that case claimed full title, nevertheless they could insist upon their rights as mortgagees in possession and take decision and judgment accordingly, appears to be contrary to the decision above reviewed in the Griswold Case (supra).
I cannot see that the position of a mortgagee in possession is at all superior to that of a contract vendee who is in possession by the very terms of the contract. The latter has at least an equitable hen upon the land equivalent to the hen of the mortgagee in possession. This principle is similar to that affirmed by the then chief judge in the opinion in House v. Carr (supra). It seems to me that the decision of the trial justice here, in effect placing upon the defendants the burden of proving payment of the balance of the purchase price under the Story contract, was contrary to that principle and to those authorities. It, therefore, is my opinion that the burden of proof in this action rests upon the plaintiff to show a default by the defendants in paying the balance
Moreover, under the circumstances proven, I think that it might well be found that the balance of such purchase price was actually paid and due conveyance made in execution of the Story contract. As was said by Chancellor Walworth in Miller v. Bear (3 Paige, 466): “ The objection on account of the lapse of time cannot be sustained, as the person originally entitled to the conveyance and those claiming under him, have been in the uninterrupted possession of the property, and using it as their own. * * * Under such circumstances, after the lapse of twenty years, it would probably be the duty of a jury to presume a conveyance in conformity to the agreement.” The language thus used was in reference to a like case of very long uninterrupted possession by such a contract vendee (p. 467). That decision in that respect was cited with approval by the Court of Appeals in Bruce v. Tilson (25 N. Y. 194, 199), which case was cited in the opinion of the trial justice here. This inference is strongly supported in the instant case by the fact that on July 24, 1899, more than ten years after he gave such possession to such defendant, Story executed a mortgage to one Doran of a part of said farm and in the description thereof, as one of the bounds, referred to the premises in question here in these words: “ Land of the Prospect Park and Coney Island Railroad.” If the theory of the trial justice, expressed in his opinion, be correct, the defendant railroad company was then over ten years in default, and an action by it to obtain specific performance was already barred. The purchaser at the foreclosure sale, McNulty, at once, June 11, 1902, gave a mortgage upon the farm, in which he expressly excepted from the premises mortgaged “ that portion thereof that lies within the roadbed of the Prospect Park and the South Brooklyn Railroad.” In addition, for the entire period of twenty-five years prior to the commencement of this action the railroad companies, one or the other, have been in open and constant use of such strip of land constituting its roadbed through said farm, evidently without any adverse claim being made by plaintiff or any of his predecessors in title for the balance of such purchase money. Under these circumstances plain
This case, in its want of equity, is very much like that in Arnold v. New York, Westchester & Boston R. Co. (173 App. Div. 764), wherein this court affirmed a decision against the plaintiff, who asserted title to a portion of a farm which forty years before constituted a part of the roadbed of a projected railroad. Im all moral, if not. legal, probability, Story did give ultimately to the contract vendee railroad company a deed of the strip and receive from it the balance of the purchase price. At all events I think that equitable relief should be denied the plaintiff upon the ground of laches.
I advise, therefore, that the judgment appealed from be reversed, with costs, and the complaint dismissed, with costs, and that in support of our judgment dismissing the complaint we find the following of the defendants’ requests to find and conclude, viz., finding No. 43 and conclusions Nos. 4, 20, 21, 25a and 36a.
Jenks, P. J., Rich, Putnam and Blackmar, JJ., concurred.
Judgment reversed, with costs, and complaint unanimously dismissed, with costs, and in support of the dismissal of the complaint we find the following of the defendants’ requests to find and conclude, viz., finding No. 43, and conclusions Nos. 4, 20, 21, 25a and 36a. Order to be settled before Mr. Justice Mills.