41 N.Y.S. 776 | N.Y. App. Div. | 1896
In March, 1895, Abraham Katz and Louis Maier made an agreement with the. defendant to sell him a certain piece of property
Two objections were made by the defendant to the title. The' first was that there was an unsatisfied mortgage upon the property. The facts in relation to that mortgage, as they appear by the proofs, are that there is unsatisfied of record a mortgage dated on the 7th day of January, 1839, and recorded on the twenty-second of February in the same year,- to secure something over $1,500. It does not appear by whom the mortgage was made, but for the purposes of this opinion it will be assumed, as it was assumed on the argument, that it was executed by some one who at that time had title to the property, as that was probably made to appear by the evidence upon the trial.
The time when the mortgage became due does not appear, and, therefore, it must be assumed that it was payable on demand and at its date. (Martin v. Stoddard, 127 N. Y. 61, 63.) The cause of action, therefore, accrued before the 1st day of July, 1848, and the Statute of Limitations in force at that time applies to the cause of action upon this mortgage. (Code Civ. Proc. § 414.) That statute reads as follows: “ After the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment, but such presumption may be repelled by proof of payment of some part or by proof of a written acknowledgment of such right of action within that period.” (2 R. S. 301, § 48.) No proof that any payment had been made upon the mortgage was given at the trial; nor was any written acknowledgment of the right of action produced. The case, therefore, stands upon the presumption of extinguishment, which is created by the statute. That presumption is undisputed in this case, and in view of it the
The principal objection to this title, however, is that the lor which has been sold encroaches upon the street and also upon the adjoining lot upon the west. It is claimed that the lot encroaches, one-half inch upon the street. That fact is disputed by the evidence and substantially disproved, but if it existed the fact would be of no importance. It appears from the evidence that the building has stood where it now does for over thirty years, without objection on the part of anybody, and in such a case as that the fact that it projects a small portion of an inch upon the street is no valid objection to the title. (Webster v. Kings Co. Trust Co., 145 N. Y. 275.)
The objection is also taken that the building upon the lot encroaches something more than three and one-half inches over the western boundary as defined in the mortgage. It appears upon the evidence that the property was conveyed to one Roberts in 1851, by a deed which fixed the east line at a point ninety-three feet west of Avenue D, and described the property as extending thence west, on the north side of Ninth street twenty-five feet, and completed the description by describing a lot twenty-five feet wide, front and rear, and ninety-two feet three inches deep.
Roberts continued to own the property until some time after 1880. In 1867, as it appears, lot No. 116, which adjoins the lot in dispute on the west, was also conveyed to Roberts, so that he was the owner
It appears from the testimony that, as a matter of fact, the house in front is ninety-three feet and two or three inches from Avenue D, and in the rear is precisely ninety-three feet from that avenue. Whichever it is, there is no doubt that it stands either within the east line of the lot as owned by Roberts or precisely on that line.
In front the width of the house is twenty-four feet and eight and three-fourths inches; but whichever may be the accurate measurement, it is still inside or upon the west boundary of the lot as conveyed to Roberts. In the rear the house is twenty-five feet wide, or twenty-five feet and one-fourth of an inch. If it is twenty-five feet wide it stands in the rear precisely on the west line of the lot 115 as conveyed to Roberts ; and if it is twenty-five feet and one-fourth of an inch, of course it encroaches just one-fourth of an inch. The condition of affairs when the property was mortgaged by Roberts, was that he owned all the land included in lots 115 and 116. He mortgaged this lot upon which stood the house, the east line of which was entirely upon his land, and the west wall of which was also entirely upon his land, but extended a few inches over the boundary as measured in the description contained in the mortgage. So we have the fact that Roberts had practically located the proper place
In any event Roberts did not convey more than a quarter of an inch of the land embraced in the boundaries of lot 116, even if he conveyed that much, and so small an enci’oachment as that is not of sufficient importance to warrant a denial of the relief which the plaintiff asks for.
When Roberts gave this mortgage under which the plaintiff claims, he executed with it covenants of warranty and for further assurance. And at that time, as is said, he owned both lots and was, therefore, at liberty to convey so much of either lot as he saw fit and locate the line of lot 3STo. 115 wherever he desired to ; and his action binds the grantees of that lot from him, as also does the covenant of warranty which is binding upon his subsequent grantees as well as upon himself. (Tefft v. Munson, 57 N. Y. 97.) So the location of this house which he made when he owned both lots is conclusive upon any person who subsequently became the owner of either, and a deed containing a title taken by the description which he then gave, which included the property as it actually existed and was occupied by him, conveys a good title to the house as it then stood.
The judgment of the Special Term was, therefore, right, and should be affirmed, with costs.
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.