77 N.Y.S. 49 | N.Y. App. Div. | 1902
It appears that under the will of William Moore, deceased, which was admitted to probate October 10, 1883, the testator’s real and personal estate was devised and bequeathed to his widow, Margaret Moore, for life, and upon her death the executors were directed to sell and dispose thereof and to divide the proceeds among the testator’s children in equal shares and proportions. The will further provided that in the event of the death of either of his children before the death of his wife, leaving lawful issue, the executors were to divide the share of such child so dying among the children of such deceased child in equal shares and proportions. The
In November, 1894, this action to foreclose the mortgage was commenced, and the summons and complaint were served personally upon each of the defendants who failed to appear or answer, and judgment of foreclosure and sale was entered on the 1st of February, 1895. There was a sale under the judgment on January 3, 1896, when the plaintiff became the purchaser, and on the 23d day of January, 1896, the referee’s deed was delivered. It further appeared that after the entry of judgment, but before the sale, Elizabeth Smith, one of the children of the testator, died during the life of the life tenant, the widow of the testator, leaving her surviving the appellants.
The mortgage sought to be enforced in this action is in form a conveyance by the three defendants of six separate parcels of land separately described, and also “ all the undivided part or interest present or prospective of the parties of the first part (Elizabeth Smith, Carrie A. Fithian, George W. Smith), or either of them, his heirs at law, devisees, legatees or otherwise, of, in and to the real and personal estate, claim, demands or choses in action of whatsoever kind and wheresoever situate whereof William Moore, late of the City of New York, died seized or possessed or to which his estate is or may be entitled,” with a provision that the grant was intended as a mortgage to secure the payment of $1,250 on the 1st day of January, 1895, with interest. When this mortgage was executed these appellants had no interest whatever in the property therein mortgaged. The will of William Moore gave to his wife his estate, real and personal, for her life. Upon her death his executors were given a power of sale, with directions to sell the estate and divide the proceeds
The complaint in this action alleges the execution of the bond by the defendant Elizabeth Smith, the mother of these appellants, and who was entitled to the remainder in the property of the testator, and the execution as collateral security for the payment of the indebtedness therein evidenced by the defendants of a mortgage whereby they had granted, bargained and sold to the plaintiff certain specific real estate of which the testator had died seized, and also the interest in the estate of the said William Moore, as described in the mortgage; that each and all of the defendants have or claim to have some interest in or lien upon the said mortgaged premises, or part thereof, which interest or lien, if any, had accrued subsequent to the lien of the said mortgage, and is subject and subordinate thereto; and demands judgment that the defendants herein and all persons claiming under them, or either of them, subsequent to the commencement of the action may be forever barred and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises; that the said premises may be decreed to be sold according to law; that the moneys arising from the sale may be brought into court, and that the plaintiff may be paid the amount due on the said bond and mortgage, with interest to the time of such payment, and that the defendant Elizabeth Smith may be adjudged to pay any deficiency arising upon such sale. As at the time this action was commenced neither of these appellants had any right, title or interest in the property of the testator, or any interest in his estate, any interest that they should subsequently acquire other than through their mother would not be affected by the fore
I do not think that a sale under this judgment, entered before these appellants became entitled to any portion of this property, would divest them of the right or interest in the estate of the testator which had vested in them subsequent to the commencement of the action and the entry of judgment. After the death of Elizabeth Smith, and on the 26th day of November, 1895, the plaintiff obtained from the court an ex parte order amending the judgment by striking therefrom the direction to sell the premises in separate parcels and directing the referee to sell only all the undivided part or interest, present or prospective, of the estate of the late Elizabeth Smith, formerly a defendant in this action, and of the defendants Carrie A. Fithian and George W. Smith, or either of them, as heirs at law, devisee, legatee or otherwise, of, in and to the real and personal estate, claim, demands or choses in action, of whatsoever kind
If we are right in this conclusion, it would seem to follow that by the amendment of this judgment, without notice to the defendants, and which granted somewhat different and other relief than that demanded in the complaint, these appellants would have been entitled to have this sale set aside, unless they are concluded by their laches. The sale took place on the 3d of January, 1896, and the deed seems to have been delivered on the 23d day of January, 1896, and of this these appellants had due and timely notice. The life tenant, however, did not die until July 23, 1901, and it would appear that during this period these appellants were ignorant of their rights, and as their estate was then merely a remainder, with.
The order appealed from should, therefore, be modified by directing that upon payment by the appellants within thirty days after the entry of the order of the amount found due by the judgment, including the plaintiff’s costs and disbursements and the referee’s fees and disbursements, the. motion to set aside the sale be granted and the referee’s deed canceled. If this money is not paid within the time limited, then the motion to set aside the sale is denied, and as so modified, the order should be affirmed, without costs to either party on this appeal.
McLaughlin, Hatch and Laughlin, JJ., concurred; Patterson, J., in result.
Order modified as directed in opinion, and as modified affirmed, without costs.