| NY | Dec 22, 1891
The judgment appealed from enjoins the defendants from the further maintenance of their elevated railway in Pearl street, in the city of 27ew York, in front of the plaintiff’s premises abutting upon that street and known as numbers -95 and 97, unless the defendants pay to the plaintiff the sum of $9,500, as the value of the easements appurtenant to the premises taken by the maintenance and operation of the road.
The trial court has found as a fact that the plaintiff “ is now and has been since the 27th day of 27ovember, 1882, seized of an estate of inheritance in fee simple absolute in the premises. * * * And has since the said 27th day of 27oveinber, 1882, been and now is possessed of said premises through her agents and servants.” An exception was taken to this finding which presents the only question we are called upon to determine.
The facts are substantially without dispute. At the time of the construction of the elevated railroad, the premises in question were owned by one John Steward, who had leased the same to tenants who were in the actual possession thereof. On 27ovember 21, 1878, and December 21, 1878, Steward executed and delivered to Charles Gr. Wolff two instruments in writing under seal, purporting to convey the premises to Wolff. But the instruments were in fact given, received and
There is no evidence showing that the plaintiff had actual notice, but it is contended that she had constructive notice from the fact that Steward was in possession through his tenants, and that because she failed to make inquiry of them as to the title under which they held, she should be treated as though she had actual notice.
We are aware of the general rule that possession is notice, to the person proposing to purchase, of the rights of the occupant, but question its application in this case under the facts disclosed.
As we have seen, the trial court has found that the p1a.int.ifF entered possession on the same day that she-received her deed. And the inference to be drawn from the testimony is that possession was given her by the agent or broker of Steward, and with his consent. Steward testified that he collected the rents after 1878; that he collected in the years 1880,1881 and 1882; that that was the last. He could not tell when he ceased to collect rents, for he did not remember when the premises were conveyed. The date of the deed to the plaintiff was, as we have shown, November 22, 1882. He ceased to collect the rent in that year, and it is quite apparent that he intended to' be understood that he collected the rents down to the time that
We are also of the opinion that Steward is now estopped from asserting or maintaining any claim to the title or right to redeem. As we have seen, the sale to the plaintiff Avas made Avith his knowledge, consent and authority. It was made by his broker who was employed for that purpose, and authorized to sell. Steward had the benefits of the proceeds of the sale. The thirty thousand dollar mortgage was assumed by the plaintiff and Steward says his debt to Wolff was paid. Wolff says the balance of the purchase-price after paying taxes, etc., was applied by him on Steward’s indebtedness. Steward has ever since acqmesced in the sale and still continues to do so. Can he now, after reaping the benefits, be permitted to complain of the transaction and establish a claim to the property ? We think not. It would be in violation of well-established rules, and contrary to the principles of equity. (Wilson v. Par-
The other questions involved have been recently disposed of. (Pappenheim v. Metropolitan E. R. Co., 40 N. Y. S. R. 445; 128 N.Y. 436" court="NY" date_filed="1891-10-13" href="https://app.midpage.ai/document/pappenheim-v-metropolitan-elevated-railway-co-3597056?utm_source=webapp" opinion_id="3597056">128 N. Y. 436; Lynch v. Same, 129 id. 274.)
The judgment should be affirmed, with costs.
All concur.'
Judgment affirmed.