4 Edw. Ch. 702 | New York Court of Chancery | 1846
From the time when the master’s report of sale became confirmed, and which was on the tenth day of July one thousand eight hundred and forty-five, Mrs. Nesbit became the owner of the house and lot, although no deed was executed conveying the property to her.
The legal title could not vest in her without a deed of conveyance. In strictness of law, it was not a sale, but only a contract of sale until consummated by a conveyance of the legal title and estate : Edwards v. Farmers' Loan Co., 21 Wend. 468 ; S. C. 26 Ib. 541.
In equity, however, it is regarded differently as to all the purposes of ownership, so that the buildings, after confirmation of the report of sale, are considered at the risk of
So, in ordinary cases of sales by private contract of parties. It is held in England that, if the purchaser agrees to accept the title after the abstract has been furnished, he, from that moment, becomes the owner; and if buildings are destroyed before actual conveyance, it is the purchaser’s loss. This was held in Paine v. Meller, 6 Ves. 349, where Lord Eldon uses this language : “ As to the mere effect of the accident itself,” (which was a burning of the houses after the defendant had declared himself satisfied with the title and before the deed could be executed to him,) “ no solid objection can be founded upon that simply, for if the party, by the contract, has become, in equity, the owner of the premises, they are his to all intents and purposes. They are vendible as his; chargeable as his; capable of being incumbered as his ; they may be devised as his ; they may be assets; and they would descend to his heirs.” This is the true and correct doctrine of a court of equity. And applying it to the present case, Mrs. Nesbit was the owner of the house and lot to all intents and purposes on the nineteenth day of July one thousand eight hundred and forty-five, when the fire occurred, although not yet vested with the legal title.
Not having effected any other insurance after she became, thus, the owner and although she did not stipulate in her contract for an assignment of the policy then covering the house, yet, in equity and as a matter of justice between her and her co-tenants, she ought to have the benefit of the policy. And this court, having still the control of the proceedings in this partition suit and of the sale made under its decree, can regulate this matter between them and compel justice towards each other.
It is unequitable and nujust that these parties, Mary and
There seems to me a clear, natural equity to the contrary; and I consider that it is competent for the court, while it has the subject matter of this sale under its charge, to direct what they shall do to carry the sale into effect without injustice to any party. Mary and Elizabeth Smith must be made to do whatever is in their power to do in order to give Mrs. Nesbit the full benefit of the policy of insurance. If they cannot, as the matter now stands, conscientiously make their affidavit of interest in the premises insured at the time of the loss by fire, so as to satisfy the terms of the policy and enable the claim for loss to be properly made, the court, by its order, can easily restore them to that interest by reducing the purchase money to be paid by Mrs. Nesbit from eight thousand five hundred dollars to six thousand dollars. This will give them an interest in the insurance money which is two thousand five hundred dollars to make up the full price that Mrs. Nesbit was to pay.
If, after the necessary preliminary proofs are furnished, a suit on the policy shall have to be brought, they must give their authority or consent to be plaintiffs in such suit, being indemnified; and should the claim upon the policy fail and the money not be recovered without any fault of Mary Smith and Elizabeth Smith, I do not see after all but the loss of the building will have to be borne solely by Mrs. Nesbit as the purchaser and owner and she will, ultimately, be obliged to pay the whole purchase sum of eight thousand five hundred dollars.
Ordered, that the defendants Mary Smith and Elizabeth Smith unite with the complainant Martha Gates and the petitioner Ann Nisbet in authorizing and empowering Stephen Cambreleng, Esquire, one of the masters of this court,