153 N.Y.S. 731 | N.Y. App. Div. | 1915
Julius GL Hocke was the owner of premises 509-513 West Fiftieth street. He was also the president of the West Side Laundry Company. This company had been openly occupying a portion of this building for some years, as a laundry, exhibitng its sign thereon, “West Side Laundry Co.” On the 1st of May, 1913, Hocke made a written lease of the portion of the premises occupied by the laundry to John O’Mara for ten years from said date, with the privilege of renewal for a further term of ten years, at a yearly rental of $6,194. This lease was not recorded. O’Mara was then the secretary of the West Side Laundry Company, and said lease was made for the benefit of the corporation. The lease was on the same day, May first, assigned by O’Mara to the laundry company, which accepted said lease and remained in possession of said premises and has
There was also served upon the laundry company a summons with notice that the plaintiff “makes no personal claim against you in this action.”
This action went to judgment which ordered that each of the defendants in this action and all persons claiming under them or any of them, after the filing of such notice of Us pen-dens, or after the filing of such amended notice of Us pen-dens, be and hereby are forever foreclosed of all right, claim, lien, title, interest and equity of redemption in and to the aforesaid premises and each and every part thereof.
The property was sold by the referee and bought in by the City Bank of Bayonne, the deed being dated and recorded on the 19th day of November, 1914. On the 5th of February, 1915, the bank conveyed to the Directors Investment Company. The bank collected the rental from the laundry company from June, 1914, until the date of the deed from the referee, and continued, from said date, November 16,1914, up to and including the 1st of February, 1915, to accept the stipulated rentals from the laundry company. A number of demands were made by the Directors Investment Company upon the laundry company to get out which were not complied with. Finally this proceeding was brought on by order to show cause why a writ of assistance should not issue. From the order granting the writ this appeal is taken by the laundry company.
The appellant claims that the lease though unrecorded is good as against the mortgage because of its priority in time and possession under it by the defendant. Phelan v. Brady (119 N. Y. 587) was an action to foreclose a mortgage upon
The respondent claims that the lease from Hocke to O’Hara under which the West Side Laundry Company claims possession, being for a term exceeding three years, and not having been recorded, was void as against the mortgagee, whose mortgage was first duly recorded. There is no question but that the lease for a term exceeding three years is a conveyance.
Section 291 of the Real Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) provides: “Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded.”
In Phelan v. Brady (supra) the court said: “At the time of the execution and delivery of the mortgage to the plaintiff, the defendant Mrs. Brady was in the actual possession of the premises under a perfectly valid but unrecorded deed. Her title must, therefore, prevail as against the plaintiff. It matters not, so far as Mrs. Brady is concerned, that the plaintiff in good faith advanced his money upon an apparently perfect record title of the defendant John E. Murphy. Nor is it of any consequence, so far as this question is concerned,- whether the plaintiff was in fact ignorant of any right or claim of Mrs.
“ It may he true, as has been argued by the plaintiff’s counsel, that when a party takes a conveyance of property situated as this was, occupied by numerous tenants, it would be inconvenient and difficult for him to ascertain the rights or interests that are claimed by all or any of them. But this circumstance cannot change the rule. Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world of the existence of any right which the person in possession is able to establish. [Citing cases.] * * The plaintiff’s loss is to be attributed to his confidence in Murphy, who probably deceived him, and to his failure to take notice of Mrs. Brady’s possession.”
In Brown v. Volkening (64 N. Y. 76) the court said: “The statute makes void a conveyance not recorded only as against a subsequent purchaser in good faith and for a valuable consideration. (1 R. S. 756, § 1.) Actual notice of a prior unrecorded conveyance, or of any title, legal or equitable, to the premises, or knowledge and notice of any facts which should put a prudent man upon inquiry, impeaches the good faith of the subsequent purchaser. There should be proof of actual notice of prior title, or prior equities, or circumstances tending to prove such prior rights, which affect the conscience of the subsequent purchaser. Actual notice, of itself, impeaches the subsequent conveyance. Proof of circumstances, short of actual notice, which should put a prudent man upon inquiry, authorizes the court or jury to infer and find actual notice. The character of the possession which is sufficient to put a person upon inquiry, and which will be equivalent to actual notice of rights or equities in persons other than those who have a title upon record, is very well established by an unbroken current of authority. The possession and occupation must be actual, open and visible; it must not be equivocal, occasional, or for a special or temporary purpose; neither must it be consistent with the title of the apparent owner by the record.”
The possession and occupation in the case at bar satisfies the
Stillwell v. Hart (40 App. Div. 112) was an appeal from an order directing the issuance of a writ of assistance to place the purchaser at the foreclosure sale in possession of the premises. The court said: “The mortgage, which was the subject of the foreclosure action, bore date December 22, 1890, and Webster, who now claims to be a prior lienor, was made a party defendant in the action to foreclose the mortgage. * " The complaint * * * so far as its averments affect Webster * * * is in the usual form, that the defendants claim or have •' some interest in or lien upon the mortgaged premises, which is subordinate to the lien of the mortgage. It follows, therefore, that Webster’s lien would remain unaffected by any judgment which might have been entered under the complaint, unless his lien was in fact subordinate thereto. It appears by the affidavit of Webster, and the agreement which is made a part of the same, that he entered into possession of the premises in pursuance of said agreement; that he has fulfilled the same upon his part and has paid the purchase price in full, and has been ever since the construction of the building, and prior to the execution of the mortgage foreclosed, in the open, visible possession and occupation of such premises. It is, therefore, clear that, if these allegations are true, Webster could not be affected in his right or title to the property under any judgment entered in the foreclosure action, and it made no difference as to such rights whether he appeared and answered or made default. (Jacobie v. Mickle, 144 N. Y. 237.) It follows, therefore, that as to Webster he may not be disturbed in his possession and occupation by virtue of this judgment, in consequence of which the writ of assistance is not authorized.”
We are of the opinion, under the circumstances disclosed by this record, that the appellant’s rights, based upon a prior, though unrecorded, lease and actual possession should not be determined in a summary proceeding upon affidavits.
The order appealed from should be reversed, with ten dollars
Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.