116 N.Y.S. 113 | N.Y. App. Div. | 1909
This is a submission of a controversy upon an agreed state of facts.
The plaintiff lias contracted to convey to the defendant certain property on the northerly side of Grand street, west of Wooster, subject to certain specified incumbrances, and the defendant has agreed to purchase it and pay therefor the stipulated price. The defendant has refused to perform the contract on the ground that the plaintiff did not have a good marketable title to the premises, for the reason that the title and the interest of the plaintiff therein were incumbered by certain mortgages and judgments not excepted in the contract. The necessary tenders were made on both sides, and the question submitted to the court is whether the plaintiff’s title was good and marketable so that the defendant was obliged to complete his contract and pay the purchase money, or whether it was not good and marketable so that the defendant was entitled to recover back the $500, which he "had deposited on the signing of the contract, and the cost of the examination. The question arises out of the following facts:
On the 1st of June, 1904, the Demarest Pattern Company owned the premises in question and mortgaged them to the Metropolitan Life Insurance Company to secure the sum of $50,000. This mortgage was a first lien upon the property. On the 29th day of July, 1904, the Demarest Pattern Company executed a second mortgage ■covering the same premises to one Lee H. Smith to secure the sum of $5,000. Smith on the same day assigned the said mortgage to one Hyman Horwitz.
The proper description is the description contained in the mortgage, which was as follows: All that certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being in the borough of Manhattan, city, county and State of Hew York, bounded and described as follows: Beginning at a point on the northerly side of Grand street, distant seventy-five feet westerly from the corner formed by the intersection of the northerly side of Grand street with the westerly side of Wooster street; running thence northerly and parallel with Wooster street one hundred feet; thence westerly and parallel with Grand street twenty-five feet; thence southerly and parallel with Wooster street and part of the distance through a party wall one hundred feet to Grand street, and thence easterly along Grand street twenty-five feet to the point or place of beginning. The description contained in the notice
The notice was indexed against all the defendants in section 2, block 475, of the land map of the city of ¡New York, which it is conceded was the proper section number and block number on the said land map of the lot described in the mortgage under foreclosure, to wit, the block bounded on the south by Grand street, on the east by "Wooster .street, on the west by West Broadway and on the north by Broome street.
After the filing of this notice of pendency of action, and after the service of the summons upon Horwitz, who at the time of the commencement of the action was the assignee of the second mortgage for $5,000, which is one of the mortgages said to be now outstanding, Horwitz assigned the said mortgage to one Brill by assignment dated December 24, 1904, and on the 5th day of January, 1905, Brill assigned a half interest in the said mortgage to one Annie Levy. ¡Neither Brill nor Levy was made a party to the suit. On the 1st day of January, 1905, and after the service of the summons upon them, the Demarest Pattern Company made a mortgage to the Colonial Trust Company, as trustee, to secure an issue of $60,000 of bonds, which mortgage was duly recorded. The defendant claims that this mortgage was not cut off by the foreclosure suit in consequence of the defect already mentioned in the notice of pendency of action. The other defects complained of were certain judgments recovered against the Demarest Pattern Company after the filing of the lis pendens.
On this state of facts the parties have agreed to submit to this court the following question : “Whether or not at the time of the tender by the plaintiff herein of the deed to the defendant herein of the premises described in this submission pursuant to the contract existing between the said plaintiff and defendant for the sale of said premises, which contract is also referred to in said submission, the plaintiff had a good and marketable title to said premises free and clear of the incumbrances mentioned and referred to in Exhibit B annexed to this submission,” and have stipulated for the appropriate judgment to be entered for plaintiff or defendant as an answer to said question shall require. The incumbrances referred
The provision for giving notice of the pendency of an action affecting real estate by filing a Us pendens is wholly of statutory creation. Formerly, both at common law and in equity in case of an alienation pending a real action, the alienee took subject to the judgment which might be rendered therein (Hailey v. Ano, 136 N. Y. 569, 574), and it was not until 1823 that this rule was changed by statute and provision made for giving notice of the pendency of such an action by filing a Us pendens. (Laws of 1823, chap. 182, § 11.)
“ § 1670. In an action brought to recover a judgment affecting the title to * * * real property, if the complaint is verified, the plaintiff may, when he files his complaint or at any time after-wards before final judgment, file, in the clerk’s office of each county where the property is situated, a notice of the pendency of the action, stating the names of the parties and the object of the action, and containing a brief description of the property in that county affected thereby. * * *.
Ҥ 1671. Where a notice of the pendency of an action may be filed, as prescribed in the last section, the pendency of the action is constructive notice, from the time of so filing the notice only, to a purchaser or incumbrancer of the property affected thereby, from or against a defendant with respect to whom the notice is directed to be indexed, as prescribed in the next section. A person whose conveyance or incumbrance is subsequently executed, or subsequently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action. * * *.
“ § 1672. Each county clerk with whom such a notice is filed must immediately record it in a book kept in his office for that purpose, and index it to the name of each defendant, specified in a direction appended at the foot of the notice and subscribed by the attorney for the plaintiff.”
So far as concerns the names of the defendants, the notice drawn in question upon this submission is unimpeachable, and there is no question as to the proper indexing. It was incumbent upon any person proposing to take a conveyance or incumbrance from any defendant to examine the index kept by the clerk. If he had done so, he would have been apprised that an action had been begun against that defendant to foreclose a mortgage which was correctly described, as to the date, the names of the parties and the record. Turning to the description of the property to be affected by the judgment, he would have found that, literally read, it contained an impossible description of a plot of land commencing on the southerly side of Grand street, an ancient and well-known public street, and then extended northerly so that for the width of the street it lay within and covered the bed of the street itself. Hot-only so, but the dimensions of the lot conld not be made to fit one which, began on the southerly side of Grand street and extended northerly. The boundaries of .the lot began at the southerly side of Grand street and ran north 100 feet, a considerable part of which would be taken up by the width of Grand street; it then ran westerly and parallel with Grand street 25 feet, and thence southerly 100 feet, not to the south
Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.
Judgment ordered for plaintiff. Settle order on notice.
See Gerard Tit. Real Est. (otli ed ) 957-963.— [Rep.