132 N.Y. 524 | NY | 1892
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *526
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *527 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *530 The agreement which antedated the deeds by one day and expressed their intent and purpose should be read in connection with them. Thus read, the deeds are shown to have been given by Lucilia Tracy to Howland, Smith and Tracy "for the purpose of securing and in consideration of said loan of $8,240" made by the grantees to the grantor and "that the said deed * * * is a security for said loan for a term not exceeding one year from the date of said deed * * * and that upon the repayment of said sum of $8,240, with interest within or at the expiration of one year by the said Lucilia * * * the said Howland, Smith and Tracy are to reconvey said premises to said Lucilia, * * * and in case said sum of $8,240 shall not be repaid during or at the expiration of one year as aforesaid, then it is understood and agreed that the said deed * * * is to become and be a deed absolute, and the said Howland, Smith and Tracy are to become and be the owners in fee simple absolute."
The deeds are thus clearly shown to have been intended as mortgages. This conclusion is also inferable from the facts. The premises at the date of the deeds were worth $30,000. The judgments against the premises were by the terms of the agreement to be paid from the money loaned, and presumably were either paid or their amount retained by the grantees from the $8,240. The amount of the outstanding mortgages against the premises was $7,000. It is not presumable that Lucilia Tracy intended to sell property worth $30,000 for $15,240. The grantor remained in possession of the premises for about two years after the delivery of the deeds. She was embarrassed and straightened for money. Stress is laid by the defendants upon the fact that the grantor did not expressly *531
covenant to repay the money. The cases are to the effect that this is one of several circumstances to be considered (Horn v.Keteltas,
The levy under the plaintiff's attachment was, therefore, upon Mrs. Tracy's land to which she had the legal title. It *532 was not merely an attempted levy upon her equitable right to obtain title. As against Howland, Smith and Tracy the levy was valid and the judgment and execution which followed the attachment became a specific lien upon the land itself, and the land could be sold upon execution.
Howland, Smith and Tracy conveyed the premises before the attachment was issued to the defendant, the N.Y. Baptist Union for Ministerial Education. This defendant by its answer admits that $3,000 of the purchase-money, with interest from January 1, 1883, remains unpaid, and that $1.550 of the principal of one of the mortgages upon the premises given by Mrs. Tracy also remains unpaid. This defendant in order to maintain the defense that it is a bona fide purchaser without notice of plaintiff's rights, must have paid all the purchase-money. (Sargent v. Eureka S.A.Co., 46 Hun, 19; Harris v. Norton, 16 Barb. 264; Jewett v.Palmer, 7 Johns. Ch. 61; Jackson ex dem. v. Cadwell, 1 Cow. 622; Boone v. Chiles, 10 Peters, 179; Patten v. Moore,
In equity it has not completed its purchase, but to the extent of its payments innocently made before notice of plaintiff's claim is entitled to protection. It may, therefore, retire from the transaction without actual loss and without further impairing the rights of the plaintiff.
The action is in aid of plaintiff's execution. Its object is not to reach any equitable assets of Mrs. Tracy, but to strip from her legal title to the premises in question the obstructions created by the deed by which such title, apparently but not in fact, passed from her to Howland, Smith and Tracy, and from them to the Baptist Union, and thus to show that the lien acquired by plaintiff's attachment of the premises and perfected by her judgment and execution was valid, and, therefore, may now be enforced free from the obstructions which seemed to defeat it. Such an action is within the equitable jurisdiction of the court. (Beck v. Burdett, 1 Paige, 305; Heye v. Bolles, 33 How. Pr. 266; Rinchey v. Stryker,
The judgment should be reversed and a new trial granted, costs to abide event.
All concur.
Judgment reversed.
