62 N.Y.S. 688 | N.Y. App. Div. | 1900
The primary question in this case relates to the validity and enforcibility of the plaintiffs’ mortgage. The material facts on that question appearing in the proofs are substantially the same as those connected with the mortgage foreclosed in the case of Benedict v. Arnoux (7 App. Div. 1; 154 N. Y. 715). There, as here, the case turned upon the point of an attorney’s knowledge of certain facts being imputable as notice to his client. In both cases the same attorney at law loaned on bond and mortgage moneys of one client to other clients. Here the transaction originated in a purpose and design to advance and further the interests of the borrower, and the effort of the attorney was to accomplish that purpose. The property upon which the mortgage was to be given as collateral security belonged to the estate of William Campbell, deceased. By his last will and testament Mr. Campbell gave to his executors a power of sale for certain purposes. The testator’s son and son-in-law,-Messrs.. Campbell and Phyfe, were interested in a building speculation .in noway connected with that property. The testator liad, however,, incurred. indebtedness on account of Campbell &' Phyfe, and in connection with their business undertakings. Campbell. & Phyfewere embarrassed, and they and the executors of Mr. Campbell’swill-desired to proceed with the particular real estate operation, but financial complications having arisen in regard thereto, it became necessary for Campbell & Phyfe to raise money to pay off liens, upon the r.eal estate the subject of their speculation, and to relieve-it from- a decree of foreclosure of a third mortgage then entered against that property. . Application was made by Campbell & Phyfeto the attorney at law referred to, who advised them that the power of sale to the executors contained in the will of Mr. Campbell did
By the decree herein, it is substantially adjudged, although not in so many words,'that the lien of the plaintiffs’ mortgage is paramount to all other liens, except taxes and assessments. Among the defendants on the record are the surviving partners of the firm of Heroy & Marrenner, and in the complaint it is .alleged that various defendants, including that firm, had or claimed to have some interest in or lien upon the mortgaged premises. The defendants last named answered the complaint and, among other things, set up that prior to the death of Mr. William Campbell he was indebted to the firm of Heroy & Marrenner in the sum of $5,000 ; that Mr. Campbell died, on the 27th day of April, 1888, seized in fee of the premises described in and affected by the mortgage in this action ; that he left a last will and testament which was duly admitted to probate on the 18th of October, 1888, and that the executors of his will duly qualified on that day; that on the 31st of December, 1889, the claim of Heroy & Marrenner against the estate of William Campbell was admitted by the executors, and a certain sum paid on account thereof; that on or about the 17th of October, 1891, within three years after the probate of the wifi of William Campbell, the surviving partners of the firm of Heroy & Marrenner began a
The petition of Heroy & Marrenner was presented one day before the expiration of the three years allowed by law for that purpose, and a notice of lis pendens was filed, but the filing of that notice did not in any way affect the rights of the petitioners, nor does it stand as notice to anybody, for there is nothing in the Code which authorizes the .filing of notices of Us pendens in proceedings of that character. Where there is a disputed claim and it is necessary to save the Statute of Limitations, and an action is brought to establish the debe under section 2751 of the Code of Civil Procedure, ,a notice of Us pendens maybe filed, but such a notice can be- filed only in actions. Then it is an absolute right, but in a proceeding of the character instituted by Heroy & Marrénner, it is not a matter of absolute right -; and it is well understood that where a notice of lis pendens is not filed in accordance with the permission of a statute, or in an action not affecting real property, it is a mere nullity. (Mills v. Bliss, 55 N. Y. 141.) But. the situation of the surviving partners of Heroy & Marrenner, in this case, does not require us to consider the effect of the filing of a notice of lis pendens. They had the right to resort to the provisions of law • authorizing the subjection of a decedent’s real estate to the pay-:
The firm of Heroy & Marrenner, defendants, resorted to the proper court, and by the proper process sought to have their debt ■established and their lien or quasi lien enforced. The proceeding failed in the Surrogate’s Court, but was restored by the General Term. * Within a day or two after the decree of the surrogate, and before an appeal had been taken to the General Term, the attorney at law before referred to completed the transaction of the loan of the money of the plaintiffs’ testatrix on the mortgage. The plaintiffs’ contention is that, inasmuch as the surrogate had decided adversely to the petition of Heroy & Marrenner, there was an adjudication that there was no claim and no right to resort to Mr. Campbell’s real estate to pay his indebtedness to them. It is true that it "was so adjudicated, but it is also true that the time to appeal had not elapsed, and that when an appeal was taken within the proper time and the decision of the surrogate was subsequently reversed, the parties were remitted to precisely the situation in which they stood at the time the petition of Heroy & Marrenner was originally presented to the surrogate; that is, within the three years in which they were entitled to take the course they pursued. If a person chooses to take a mortgage on real estate under such circumstances, he does it at hi's peril..
There is no question of notice by reason of a lis pendens, but there is a question of notice by reason of the provision of law which an intending pnrehaser of real estate is bound to know, namely, that the real estate is subjected to the payment of a decedent’s debt within three years from the probate of a will; and when it is ascertained that such a proceeding has been taken (as was the fact in this case), the purchaser takes the risk of accepting title
Upon the appeal of the defendants Heroy et al. the judgment should be reversed, with costs, and the complaint dismissed, with costs as to them. Upon the appeal of the other defendants the judgment should be affirmed, with costs.
Yan Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Upon the appeal of the defendants Heroy & Marrenner judgment reversed, with costs, and complaint dismissed, with costs as to them. Upon the appeal of the ocher defendants judgment affirmed, with costs.