25 N.Y.S. 1038 | N.Y. Sup. Ct. | 1893
This action is for the recovery of a judgment declaring that the defendants hold an undivided half of No. 117 Christie street upon a resulting trust for the plaintiffs, and that they be required to convey and deliver possession of the same to them, and that they account for rents and profits. April 29, 1873, the premises in controversy were conveyed to John Balken and Frederick C. Koke in consideration of $16,250, they becoming tenants in common, each owning an undivided half, subject to a mortgage of $10,000, which they assumed and agreed to pay. March 13, 1876, Frederick C. Koke mortgaged his undivided half of the premises to secure the payment of $1,500 on March 13, 1878, with interest, which mortgage was duly recorded. October 2, 1876, Frederick C. Koke died intestate, leaving, him surviving, his widow, Elizabeth F. Koke, and eight children, the plaintiffs in this action, (of whom Elizabeth F. Koke is the mother,) his heirs and next of kin. October 10, 1876, Elizabeth F. Koke was appointed administratrix of the estate of her husband, and also'the general guardian of her children, all of whom were then minors. February 21, 1878, John Balken and Elizabeth F. Koke entered into this agreement:
“Agreement made and entered into this 21st day of February, 1878, between Frederika Koke, administrator of the goods, chattels, and credits of Frederick O. Koke, deceased, party of the first part, and John Balken, of the same place, party of the second part, witnesseth that the said party of the first part agrees to sell unto the said party of the second part the undivided one-half part of house and lot kmfwn as ‘No. 117 Christie Street,’ in the city of New York, for the sum of nine thousand one hundred and seventy-five dollars, to be paid to her as follows, viz.: The sum of sixty-five hundred dollars by assuming two mortgages for that amount, being a lien on said undivided one-half of the said house and lot. with interest from*1040 March 1st, 1878; the sum oí twenty-five hundred dollars by his bond secured by a mortgage on said premises, and payable in five years or sooner, with interest at the rate of seven per cent, per annum, payable half-yearly; the sum of one hundred and seventy-five dollars in cash on delivery of deed. And the said party of the second part hereby agrees to buy the said undivided half of said premises for the price above stated, and pay for the same as above specified. The deed to be delivered as soon as a decree of the surrogate of the city and county of New York shall be obtained for the sale of said premises. Party of second'part to take possession, and be entitled to' the rents from March 1st, 1878. Said premises to be conveyed free and clear from all incumbrances, except as aforesaid. In witness whereof the parties hereto have hereunto set their hands and seals on the day and year first above written.
John Balken. [Seal,]
“F. Koke. [Seal.]
“Sealed and delivered in presence of P. W. Koke.”
April 1,1878, the $1,500 mortgage above mentioned was assigned by the mortgagee to Mary Balken, wife of John Balken, who paid the purchase price therefor. July 24, 1879, Mary Balkeu commenced an action in the court of common pleas for the foreclosure of that mortgage, wherein Elizabeth F. Koke individually and as administratrix, and her eight children, were parties defendant. A guardian ad litem was duly appointed for the infant defendants. August 22, 1879, the usual judgment of foreclosure' and sale was recovered in the action, the amount found due being $1,650.48, with interest from March 16, 1878. Subsequently the premises were sold pursuant to the judgment to John Balken, who received a conveyance, dated September 15, 1879, which was duly recorded. This sale was subject to the mortgage for $10,000. Under this deed Balken entered into possession of the premises. December 1, 1879, John Balken executed a mortgage on said premises to Elizabeth F. Koke, as administratrix of her husband’s estate, for $3,500, with interest, no part of which has been paid except the interest thereon to June 1, 1890. Said mortgage, together with $175 in cash, was the consideration paid and secured to be paid by John Balken for the interest of the plaintiffs and of their mother in said premises. September 23, 1880, John Balken died, leaving Mary R. Balken, his widow, and seven children, his heirs at law, who are defendants herein. He left a will, which was duly admitted to probate, and letters thereon were issued to Jonas Stremmel, the executor therein named, who is a defendant in this action. By his will the testator devised all of his real estate to his widow during her life, or until her remarriage; and at her death or remarriage he directed Ms executor to sell the same, and divide the proceeds among Ms seven children. Subject to the life estate, the realty descended to the testator’s seven children. The widow is still living, and has not remarried.
It is urged that Balken owed a duty to his cotenants in common in respect to this property, and that he could not become a purchaser to their disadvantage. Assuming that one tenant in common in no way related to his cotenant owes this duty, we fail to find any evidence in the admitted facts above stated which would have authorized the court to have found that this duty was violated. It does not seem to us that the contract above quoted furnishes the