176 N.Y. 455 | NY | 1903
Lead Opinion
The action is in ejectment for the recovery of a piece of land in the village of Nunda, county of Livingston. Under the findings of the trial court there is but a single question presented to us on this appeal. The plaintiff traced her title from one Robert Girven, concededly the owner and in possession of the premises, who, on April 25th, 1889, mortgaged the property to one James H. Carmichael. The mortgage was subsequently assigned to Annie E. Volger, and default having been made in its payment it was foreclosed by action. At the sale made under the judgment in said action the lands were sold and conveyed to Fred. M. Inglehart, who on the same day executed to said Volger a mortgage to secure $1,000 of the purchase money. Mrs. Volger subsequently *457 assigned her mortgage to the plaintiff, who, default having been made in its payment, brought an action to foreclose the same. Under the judgment in that action Mrs. De Garmo, the plaintiff therein, purchased the mortgaged lands. In October, 1892, intermediate the execution of the mortgage from Girven to Carmichael and the sale under the judgment for the foreclosure of said mortgage, the defendant entered into possession of the premises, claiming title under deed executed by the county treasurer of Livingston county for non-payment of taxes, and has remained ever since in possession, claiming in hostility to the plaintiff and her predecessors in title. The trial court held that such adverse possession defeated the plaintiff's title under the provisions of the statute (1 R.S. p. 739, secs. 147, 148; Real Property Law, chap. 547, Laws of 1896, § 225), which provide that "every grant of lands shall be absolutely void, if at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor. But every person having a just title to lands, of which there shall be an adverse possession, may execute a mortgage on such lands; and such mortgage, if duly recorded, shall bind the lands from the time the possession thereof shall be recovered by the mortgagor or his representatives."
That judicial sales do not fall within the condemnation of these statutory provisions has been settled law from a very early time in the history of this state. (Tuttle v. Jackson, 6 Wend. 213; Hoyt v. Thompson,
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
Dissenting Opinion
I think that the judgment below is right and that it should be affirmed by us. The effect of the unanimous affirmance is to establish conclusively, upon this *460
review, the fact that, prior to and at the time of Inglehart's purchase at the judicial sale, the defendant Phelps was in actual possession of the land and that he was claiming it under a title adverse to that of Inglehart, or of his predecessor in title. The validity of the county treasurer's deed, through which he claims, is not an issue to be tried. Whether a party, who claims by right of adverse possession, has a rightful title is not an essential fact. That fact is not the issue in such an action, where the defense is that the plaintiff's title rests upon a champertous conveyance. The very object of the statute, which was founded on a common-law principle, was to prevent a party out of possession from transferring his right to litigate for the recovery of possession. (Sands v. Hughes,
If the inhibition of the statute applies to plaintiff's case, then it is only necessary that the defendant should have had color of title, with an actual possession. The Revised Statutes, in force at the time of Inglehart's transaction, provided that "Every grant of lands shall be absolutely void, if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor" and that "every person having a just title to lands, of which there shall be an adverse possession, may execute a mortgage on such lands; and such mortgage, if duly recorded, shall bind the lands from the time the possession thereof shall be recovered, by the mortgagor or his representatives." (1 R.S. 739, §§ 147, 148.) The present Real Property Law preserves a similar provision. (Laws of 1896, ch. 547, § 225.) The conveyance to Inglehart by the judicial *461
officer, upon his purchase at the judicial sale, was not within the inhibition of the statute; because, being a judicial sale, the statute could have no application and this was always so held. (See 4 Kent's Com. 447; Coke's Litt. 214a; Tuttle v.Jackson, 6 Wend. 224; Truax v. Thorn, 2 Barb, 156;Stevens v. Hauser,
While, therefore, the deed to Inglehart was not within the purview of the statute, the mortgage, which he executed to a third person, in order to procure a portion of the purchase money which he was to pay, came, clearly, within the statutory inhibition, and that was the position taken by the respondent, Phelps, upon his motion to dismiss the complaint at the close of plaintiff's case. The mortgage by Inglehart was a grant of land, then in Phelps' actual possession, to secure the performance of the promise to pay a sum of money. A mortgage is a deed with a condition, (
In my opinion, Inglehart's mortgagee obtained no title, nor interest, in or to, nor lien upon, the land then held by Phelps in actual adverse possession and, consequently, the foreclosure proceedings, through which this plaintiff became a purchaser thereof and to which Phelps was a stranger, were without effect upon his interests.
PARKER, Ch. J., O'BRIEN and MARTIN, JJ., concur with CULLEN, J.; WERNER, J., concurs with GRAY, J.; HAIGHT, J., not voting.
Judgment reversed, etc.