16 N.Y.S. 240 | N.Y. Sup. Ct. | 1891
This action was upon a covenant of warranty contained in a deed from the defendant to the plaintiff’s grantor. The plaintiff was evicted by a purchaser under a foreel<$3ure and sale of the premises upon a mortgage given to the loan commissioners of Cortland county to secure the payment of the sum of $496, and interest. Themortgage was given in June, 1837, by Jonathan and Ransom Scott, who were then the owners of the premises mortgaged, which included the premises in question, with other lands then owned by them. The mortgaged premises, with others, were conveyed by Ransom Scott and wife to Charles Pardee, March 12, 1867. This deed was made subject i;o the foregoing mortgage, which the grantee assumed and agreed to pay as a part of the purchase price. The deed was recorded April 15, 1867. Pardee conveyed to John and Daniel Curtin 137 acres of the mortgaged premises on April 1, 1868, subject to such mortgage, which the grantees covenanted to
The appellant contests the validity of this judgment upon the grounds: (1) That the sale, not having been made in the inverse order of alienation, was void, and that plaintiff and his grantor, having notice that the lands sold were not primarily liable for the mortgage debt, and having been present and permitted them to be sold, when the lands which were primarily liable were of sufficient value to have satisfied the debt and costs, were estopped from claiming damages caused by their neglect. (2) That, if the defendant was liable, the damages awarded were in excess of the amount to which the plaintiff was entitled. We do not perceive how the question of selling the mortgaged premises in the inverse order of alienation is involved in the case. The question here relates to the validity of the sale of a portion of the premises which, under the contract between lhe owners, had become only secondarily liable for the mortgage debt, before selling the part that was primarily liable therefor. That the loan commissioner, in making this sale, did not first sell the portion of the premises which by the conveyance between the former owners was made primarily liable for the mortgage debt, is undenied. That such should have been the order of sale we have no doubt, notwithstanding the fact that the provisions of the statute requiring property thus mortgaged to be sold in the inverse order of alienation has been repealed. Laws 1837, c. 150; Laws 1856, c. 3; Laws 1863, c. 73. The well-recognized principles of equity required the premises primarily liable to pay such debt to be first sold, and we have no doubt that a sale in that order could have been enforced if the plaintiff, his grantor, or the defendant had demanded it. Conaughty v. Nichols, 42 N. Y. 83. Where the owner of mortgaged premises sells a portion thereof to a purchaser, who assumes and agrees to pay as a part of the purchase price the whole or a part of the mortgage debt, the purchaser is legally and equitably bound to pay off and satisfy such mortgage. By such assumption he becomes the principal debtor, and the land conveyed to him the primary fund out of which the mortgage is to be paid; the mortgagor remaining simply a surety, and the remainder of the property being liable only secondarily. The purchaser, therefore, is bound to protect the mortgagor and his grantees from all liability on account of the mortgage debt; and, should the mortgagor or his grantee be compelled to pay the mortgage debt, or any part thereof, he will be entitled to an assignment of such mortgage to enable him to obtain satisfaction out of the land of the party who assumed the payment thereof. Torrey v. Bank, 9 Paige, 649; Wilcox v. Campbell, 106 N. Y. 325, 12 N. E. Rep. 823; Halsey v. Reed, 9 Paige, 446. But, as we have already seen, neither the plaintiff nor his grantor nor the defendant requested or demanded of the loan commissioner that the premises owned by the grantee of Daniel Curtin should be first sold. The effect of such omission is one of- the questions we are required to consider on this appeal. No question is raised as to the regularity of the proceedings before, upon, or after such sale, except that the plaintiff’s premises should not have been first sold. That they were still subject to the mortgage there is no doubt. Did the failure of the commissioner to first sell the piece primarily liable for the debt render the sale void? We think not. While it is doubtless true that, if the plaintiff, his grantor, or the defendant had demanded or requested the com
The contention of the appellant is that the plaintiff’s right to maintain this action was barred by the action of himself and his grantor in standing by and permitting, without objection, the sale of their premises first, when, if they had asserted their right, the premises would not have been sold. We think it is quite obvious that, if the plaintiff or his grantor had objected to such sale, and requested that the other portion of the mortgaged premises should be sold first, the commissioner would have discovered his error, and sold the premises in the proper order. This brings us to the question whether the plaintiff owed to the defendant the duty to make this demand, and, if so, whether his omission to discharge it relieved the defendant from his liability upon the covenant which was the basis of this action. On the trial the plaintiff’s evidence tended to show, and the court in substance found, that the plaintiff’s grantor served upon the defendant a notice of such salv, and requested him to be present and protect the plaintiff’s premises from such mortgage, and he agreed to be present. Under this evidence we are inclined to hold that the plaintiff and his grantor had a right to rely upon the agreement of the defendant to be present and protect the premises from sale. That they would not have been required to attend under such circumstances we think is quite clear. Wilcox v. Campbell, 106 N. Y. 325, 12 N. E. Rep. 823. We are also of the opinion that, if they went there relying upon the defendant’s promise, without ascertaining their rights or learning that any action upon their part was necessary to protect their premises from sale, and, in consequence thereof, omitted to make the proper request, the defendant cannot complain, and such omission did not bar a recovery in this action. We have been cited to no case or doctrine of the law of estoppel which would justify us in holding, under the circumstances developed by the evidence in this case, that the plaintiff was estopped from maintaining an action upon the defendant’s covenant of warranty because he was present at such sale, and did not demand that the other portion of the mortgaged premises should be first sold. It will be observed that the question here does not arise between the plaintiff and the purchaser. If such had been the question, it may be that the plaintiff, if he was silent or passive, when he ought to have spoken or acted, might, as to the purchaser or those claiming under him, have been estopped. Here the question is between the plaintiff and a former grantor of the premises. “The party will, in many instances, be concluded by his declarations or conduct, which have -influenced the conduct of another to his injury. The party, in such cases, is estopped from denying the truth of his admissions. But, to the application of this principle with respect to title to property, it must appear—First, that the party making the admission by his declarations or conduct was apprised of the true state of bis own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and ¡fourth, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved. The primary ground of the doctrine is that it would be a fraud in a party to assert what his previous conduct had denied,
This brings us to the consideration of the question of damages. The court awarded to the plaintiff the value of the premises in question at the time of his eviction. The amount awarded was $1,906.19, and interest from February 7, 1888, which was when the plaintiff was evicted. The rule of damages in this state in an action for the breach of a covenant for quiet enjoyment, in the absence of fraud, where the eviction is based upon an absolute title in another, is the amount of the purchase money, with interest from the time the plaintiff loses the mesne profits, not to exceed six years. Staats v. Ten Eyck, 8 Caines, 111; Pitcher v. Livingston, 4 Johns. 1; Bennet v. Jenkins, 13 Johns. 50; Baldwin v. Munn, 2 Wend. 399; Dimmick v. Lockwood, 10 Wend. 142; Kinney v. Watts, 14Wend. 38; Kelly v. Dutch Church, 2 Hill, 106; Hunt v. Raplee, 44 Hun, 149, 155. The covenant of warranty contained in the deed from the defendant to the plaintiff’s father was a covenant which run with the land for the protection of the owner in whose time the breach occurred, and passed with the estate by purchase to the plaintiff. Bawle, Cov. § 213 et seq., and cases cited. The plaintiff’s right of action being under and by virtue of the covenant contained in the deed from the defendant to plaintiff’s grantor, it may be that the'true rule of damages would be the amount of the purchase price named in the defendant’s deed. There is, however, a conflict in the decisions of other states upon this question. By some it is held that the measure of damages in such a case is the consideration paid by the original covenantee, and not the price paid by the plaintiff. Lowrance v. Robertson, 10 S. C. 8; Hopkins v. Lane, 9 Yerg. 79. By others, that the measure of damages is the price paid by the plaintiff, not exceeding the amount of consideration received by the defendant. Moore v. Frankenfield, 25 Minn. 540; Crisfield v. Storr, 36 Md. 150; Mette v. Dow, 9 Lea, 100; Williams v. Beeman, 2 Dev. 483. Perhaps it may be said that the weight of authority in other stales is adverse to the rule first stated. In the case of Petrie v. Folz, 54 N. Y. Super. Ct. 223, which was somewhat similar to the case at bar, Sedgwick, C. J., in delivering the opinion of the court, said; “There remains to be said that the defendant was not correct in his claim that the value of the land was to be deemed the amount of consideration recited in the deed to plaintiff; .that is, $1. The warrantor is liable according to the value of the land at the time of the warranty, which is conclusively fixed at the amount of the consideration of the sale. Bawle, Cov. 243; Sedg. Dam. (5th Ed.) 168, and the cases cited in these books from the state of Hew York. Evidently the warrantor should at least return such part of the consideration as he appropriated as represents the value of the land to which he gave no title.” In Dickson v. Desire's Adm'r, 23 Mo. 166, it is said: “On a covenant of warranty or seisin, where the transaction remains between the original parties, the measure of damages is the value of the land at the time of the sale, as fixed by the parties themselves in the price given and received. When, however, the original grantee has sold the land to another, and the second purchaser has been evicted, the damage he has sustained is the value of the land at the time of his purchase; and his right
The appellant, however, makes the further claim that the plaintiff was only entitled to recover the amount of the mortgage, interest, and costs, and at most the judgment should have been only for the sum of $635.52. It is said in Devlin on Deeds, § 934: “If the eviction is by a paramount lien, damages may be recovered to the extent of the lien, if this does not exceed the amount that could be recovered for an eviction for failure of title.” Many cases are cited as sustaining this doctrine. When, however, the cases cited are examined, it will be found that they arose in states where the local laws regulating the foreclosure of mortgages provide that, even after entry by the mortgagee upon the land for that purpose, it may still be redeemed within three years, or some other period, by payment of the mortgage debt and costs, and hence, although the purchaser may have been actually evicted by the mortgagee, yet, if the latter held the possession only under a conditional judgment, or if it be otherwise defeasible by payment of the amount due on the mortgage, with costs, the damages will be limited to that amount. In other words, what is held in these cases is that, so long as the purchaser still has a legal right to regain the estate by payment of a certain amount, he can recover no greater sum. This is the doctrine held in the cases of Norton v. Babcock, 2 Metc. (Mass.) 510; White v. Whitney, 3 Metc. (Mass.) 89; Donahoe v. Emery, 9 Metc. (Mass.) 63; Tufts v. Adams, 8 Pick. 547; Furnas v. Durgin, 119 Mass. 500; Curtis v. Deering, 12 Me. 499; Lloyd v. Quimby, 5 Ohio St. 262. And when we examine the case of Winslow v. McCall, 32 Barb. 241,—which is a case much relied upon by the appellant,—we find that it establishes the same doctrine. In that case the eviction was by a mortgagee in possession. The mortgage had not been foreclosed, and hence there had been no absolute failure of title. Under these circumstances, the court held that the measure of damages was the amount due upon the mortgage, with interest from the commencement of the action. We cannot see how these cases aid the appellant, as in the case at bar there had been a foreclosure which resulted in an absolute failure of the plaintiff’s title. On the other hand, in the case of Elder v. True, 32 Me. 104, where a mortgagor of land conveyed premises by a deed of warranty, it was held that his grantee was under no obligation to redeem, and, if the mortgage was foreclosed, the measure of damages to be received by the grantee was the value of the land and interest. In Stewart v. Drake, 9 N. J. Law, 139, it was held that where, by reason of an antecedent mortgage, the grantee was evicted, the rule of damages for a breach of covenant for quiet enjoyment and warranty was the same as if the grantee had been evicted by reason of a total want or failure of title in the grantor,—that is, the amount of the consideration money, with interest. In Miller v. Halsey, 14 N. J. Law, 48, it was held that the refusal of the plaintiff to buy in a paramount title or incumbrance, even when offered to him upon moderate terms, was no waiver of the covenant for quiet enjoyment, and would not bar a recovery thereon after eviction. In Wilcox v. Campbell, 106 N. Y. 325, 12 N. E. Rep. 823, it was held that the rule which requires a party exposed to injury or damage to make the loss as small as he reasonably can does not require the grantee to advance the money to pay a mortgage for the purpose of protecting himself or his land. We think the authorities bearing upon the question do not sustain the claim of the appellant, but that the rule of damages in this case was the value of