61 N.Y.S. 426 | N.Y. App. Div. | 1899
On the 25th of November, 1891, one William Eisenberg,. being seized of the premises in question in fee, executed, together with his wife, a mortgage thereon to James Cordon Bennett and William Jay, as surviving trustees of Isaac Bell, deceased, to secure the sum of $26,000. Subsequently, on the 15th of December, 1891, said Eisenberg conveyed the said premises to one Ulman; and thereafter Ulman and wife mortgaged said premises to one Hanna Wolfe to secure the sum of $4,500. On the 14th of February, 1892, Hanna Wolfe assigned the last-mentioned mortgage to John Zorn, as sole
In March, 1894, Frances Zorn, in consideration of one dollar and •exchange of property, conveyed the premises in question and other property to Daniel E. ¡Norcross by deed dated March 9, 1894, and Tecorded March 13, 1894; and thereupon delivered possession of •said premises to said ¡Norcross, who, on the 16th of April, 1894, together with his wife, conveyed said premises to Frank W. Belmont by deed dated and recorded April 16, 1894. On or about April SO, 1894, Belmont and wife, in consideration of one dollar and
The plaintiff was the purchaser of the premises in good faith for value; and without any notice whatsoever, save such notice as the law might impute to him from the matters of record above set forth-The plaintiff thereupon went into possession of the premises, collected the rents, issues and profits thereof and paid the taxes and. insurance on said premises and the interest on said mortgage.
The submission also contains the provisions of the last will and testament of. Johann Baptist Baader, deceased, under which the said John Zorn was the sole surviving executor and trustee. In February, 1896, an order was duly made and entered by one of the surrogates of the county of Hew York revoking the letters testamentary issued to said Zorn and appointing Bernard H. Arnold as substituted trustee. Said Arnold duty qualified as such substituted trustee, and thereafter filed a claim to the surplus money deposited with the chamberlain, as aforesaid, and such proceedings were had that such surplus money was awarded to said Arnold as substituted-trustee and subsequently paid to him by the chamberlain. On the-20th of February, 1899, the-plaintiff entered'into a contract with the defendant for the sale and purchase of the property in question-At the time of the execution and delivery of said contract the-defendant paid to the plaintiff-the sum of $1,000.
■ The defendant objects to the title because the wife of John.Zorn,, the trustee under the last will and testament of John Baptist. Baader, and the holder of the second mortgage upon said premises, became the purchaser at the foreclosure sale of the first mortgage-as above stated; and the question submitted here is whether such, objection is well founded.
There seems to be no question that prior to the deprivation of a. husband of all right and interest in his wife’s real estate, the abjection in question would have been considered to be of such character as would, if known to the purchaser,, render the title unmarketable. The reason of this rule undoubtedly was that the husband, during the lifetime of the-wife, could reduce to his own possession the personal property of his wife, and was entitled to the possession of- her real estate and to the rents, issues and profits-
Furthermore, it appears that the purchaser in this case had no-knowledge, except such as an examination of the records would have disclosed, of the existence of the alleged cloud upon the title.
It is urged that as an examination of the records with reference to this title might have disclosed these facts, knowledge thereof is imputed to him upon the ground that every purchaser of real estate is presumed to have examined the title and is presumed to have knowledge of every fact disclosed by the record or to which an inquiry, suggested by the record, would have led. And the case of Moot v. Business Men's I. Assn. (157 N. Y. 209) is cited to support this proposition. An examination of that case shows that no such proposition as is contended for was announced by the court. In the case cited the contract provided, for the delivery of a deed conveying a good and satisfactory title on a certain day and making time" of the essence of the contract. It also contained a provision-that the vendor would furnish a search truly'showing the condition of the title. Such a search was furnished, which presented an appar
We--aré',- therefore,ofTo'piniom that;'tiré;titlfe-pfoffered' to- the defendant was good so far- as the objection taken was concerned, and that the plaintiff is entitled to judgment. Judgment, ordered accordingly, With costs.
Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment ordered for plaintiff, with costs.