61 N.Y.S. 362 | N.Y. App. Div. | 1899
The plaintiff in this action, being the owner and in possession of a piece of land now located in the city of New York, executed á contract whereby she agreed to convey to the defendant, and the defendant agreed to purchase, the said land.. On the day named for the delivery of the conveyance, the plaintiff tendered to the defendant a conveyance, duly executed, sufficient to convey the premises to the defendant. The defendant refused to accept the deed for the reason that the title tendered was not marketable, and the question submitted is whether the conveyance tendered would vest in the defendant a good and marketable title to the premises.
It appeared that one Schultze acquired the property by a conveyance dated August 1, 1855; that on March 25, 1861, one Fisher recovered a judgment against Schultze, which- was duly docketed in the office of the clerk of Westchester county, within which county the property was then situated; that an execution against the real and personal property of the judgment debtor was duly issued to the sheriff of said county, who, pursuant thereto, duly sold at public auction on Juné 7,-1861, all the right, title and interest of said judgment debtor in' and to the premises to one William Henry Austin for the sum of $100, and made, executed and delivered to said Austin a certificate of said sale dated June 7, 1861, which was duly recorded June 22, 1861, in the office of the clerk of Westchester county; that no deed of said premises from such sheriff to Austin, or to any other person, was ever recorded in the office of the clerk or register of Westchester county, and, so far as the parties to this proceeding, or either of them, have any knowledge, information or belief, no such deed has ever been made, executed or delivered;
The statute in force at the time that this certificate was given (2 R. S. 370, § 42) provides that upon the sale .of real-estate by virtue of any execution, the officer making the same shall make out and subscribe duplicate certificates of such sale. By section 43 it is provided that one of such duplicate certificates shall,, within ten days after such sale,, be filed in the office of the clerk of the county, and the other shall be delivered to the purchaser. By chapter 60 of the Laws of 1857 it is provided that “ Whenever a certificate of sale of real estate by a sheriff shall' be filed in the office of the clerk or register of any county, pursuant to section forty-three of title five, chapter six of the Revised Statutes, it shall be the duty of such clerk immediately to record the same in a book to. be kept by him for that purpose ” (§ 1); that “ The record thereof, or a certified, copy of such record, shall be evidence of the facts therein-contained in all courts and places, the same as if the original record were produced.” (§ 2.) By 2 Revised Statutes, 370, section 44, it is provided that “ Such original certificate, upon being proved or acknowledged, in the manner required by law to entitle deeds to be recorded, or a copy of such original, duly certified - by the clerk in whose office such original is filed, shall be received as presumptive evidence of the facts therein contained.” There is no provision in this statute' making such record notice of the contents of the certificate, or of the sale thereunder. By section 62 (p. 373) it is provided that “ After the expiration of fifteen months from the time of the sale of any real estate, if any part of the premises sold shall remain unredeemed by the person against whom the execution issued, or by any person entitled to redeem the same within one year from the tune of such sale, according to the foregoing provisions, then the officer making such sale shall complete the same,
By the Recording Act (1 R. S. 756, § 1) it is provided that “ Every conveyance of real estate within this State, hereafter made, shall be recorded, * * * and every such conveyance not so recorded shall be void as against any subsequent purchaser, in good faith and for.a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” By section 38 (p. 762) it is provided that “ The term 1 conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing, by which any estate, or interest in real estate is created, aliened, mortgaged or assigned; or by which the title to any real estate may be affected in law or equity.” This sheriff’s certificate of sale could not be deemed a conveyance within the provisions of this section. The certificate did not affect any estate or interest in real
It follows, therefore, that the record of this sheriff’s certificate, in the office of the clerk of Westchester county, was not a cloud upon the title of the plaintiff, and that the plaintiff’s title to the property is a marketable one. The plaintiff is, therefore, entitled to judgment decreeing a specific performance under the contract, with costs.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment ordered for plaintiff, with costs.
Note.— The rest of the cases of this term will be found in the next volume, 46 App. Div.— [Rep.