133 N.Y.S. 18 | N.Y. App. Div. | 1911
Appeal from a judgment entered upon a decision of the court without a jury, dismissing the complaint upon the merits. The action is hy a widow against the executor of her husband’s estate for damages for the breach of a covenant against incumbrances contained in a deed of real estate executed by the husband in his lifetime to his wife.
On December 30, 1902, William F. King executed and delivered to his wife a deed, with full covenants, in the statutory short form, of a house and lot in the city of New York for the expressed consideration of love and affection and two dollars. The conveyance was made subject to certain covenants in former deeds, but no reference was made to a mortgage for $50,000 then constituting a lien on the premises, and which had been executed by King when he purchased the property in October, 1901. This mortgage the plaintiff has since paid off, and she now seeks to recover the amount paid for that purpose, as damages for the breach of the covenant against incumbrances contained in the deed to her. The court found as one of the facts in the case “that there was no valuable or pecuniary consideration for the deed of William F. King to the plaintiff of the premises No. 871 Madison Avenue, or for the covenant against incumbrances contained therein.” He, therefore, held that no action would lie for breach of the covenant.
The question whether this finding of no substantial consideration is supported by the evidence first merits attention. It appeared from the evidence, and was found by the court, that William F. King, who was a merchant in the city of New York, in the year 1892 purchased a house in Fifty-sixth street, the deed being made to his wife, the present plaintiff, for an expressed consideration of $70,000, of which $40,000 was secured by a purchase-money mortgage executed by the plaintiff and her husband.. Whatever cash consideration was paid was furnished by Mr. King, presumably out of his own funds. On March 31, 1893, plaintiff executed a deed of this house to one William B. Thom for the expressed consideration of $72,000, subject to the above-mentioned mortgage for $40,000, which the purchaser assumed as part of the consideration. Plaintiff received no part of the consideration for this convey
It follows that the judgment must be reversed and a new-trial granted, with costs to appellant to abide the event.
Ingraham,.P. J., McLaughlin, Clarke and Dowling, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.