14 Misc. 83 | N.Y. Sup. Ct. | 1895
Before the foreclosure action was com-. menced the widow had deeded whatever interest' she had in the property to her daughter. If, therefore, the daughter has not been foreclosed, she is, under her mother’s deed, still the owner of the property, subject, of course, to the lien of the mortgage. The deed from the mother to the daughter was not, however, recorded, and the mortgagee had no knowledge or notice of the deed until .after thé foreclosure was completed and the property was sold and purchased by the plaintiff in this action. It is provided by section 1671, Code Civil Procedure, that a person whose conveyance from a defendant is recorded' subsequent to the filing of the notice of péndeney of - the action is bound by all proceedings taken in the action after the filing of such notice, to the same extent as if he was a party.
The daughter seeks to avoid the provisions of . this section by claiming she took possession under her mother’s deed before the filing of the notice, and before the action was commenced, and that such possession’ was notice to the mortgagee of her deed and title.
It is undoubtedly true that if the mortgagee knew, or had notice of, the daughter’s deed and title before the action was commenced, and the notice was filed, he was bound to make her a party to the action, the same as though her deed had been recorded before the commencement of the action, and it is also true, very likely, that possession by the daughter, under her deed, might be such as to amount to. notice of such deed and title. But the possession, in order to have this effect, must have been actual, open and visible, and not equivocal, nor must it have been consistent with the title of the apparent owner by the record. Cook v. Travis, 20 N. Y. 400; Brown v. Volkening, 64 id. 76; Pope v. Allen, 90 id. 298; Holland v. Brown, 140 id. 344.
The court said “ Both, to all outside appearance, occupied the land, and-which was the actual possessor, and which occupation was subordinate and under the other, could only b& naturally inferred from knowledge of the title, and when it ' appeared from- the record that (the agent) had the deed, theproj)er inference was thpt defendant’s possession was under; (the agent), and in subordination . to the true-title., * * *" The defendant’s possession was epuivooal, and consistent with. (the agent’s) title .on the record, since (the agent) was also in possession, and there wag nothing to indicate that the defendant’s possession ■ was not subordinate to his (the. 'agent’s) or suggest hostility to the record title.” .
In this case it appears the Jenkins, husband and. wife, with ' their children, including this daughter, lived upon this propei’ty from 1866 down to the death of the husband July 23,, 1891, and then -the widow and children, including this daughter, continued to live there until the trial of this action, except: as business, at times,, called some one or more of them away.. It- had all the time been the home of both the mother and daughter, They had kept boarders in the house before and since Harch,-4892, when the -daughter claims to have taken, possession. Both had worked about the house, as they had. been able, both before and after the alleged change of pos
It results from the views here suggested that the record was properly relied on in the foreclosure action, that the daughter was not a necessary party, but was bound by the proceedings therein and was foreclosed of all interest she had in the property under the deed from her mother, the same as though she had been a party to the action.
The deeds from the board of supervisors, Oswego county, upon which the defendant Ha/nriet O. also relies to defeat plaintiff’s action, were not given in subjection to the mortgage foreclosed, but adverse to it. The validity and effect of these deeds was not determined in the foreclosure action, and could not have been, except by the grantee in the deeds being made a party and consenting to such determination. They must be considered and passed upon as original questions in this action. Cromwell v. MacLean, 123 N. Y. 474.
These deeds were both quit-claim deeds, both recited the same consideration and both were evidently given to convey the same title acquired under the tax sale of January 2, 1889. '
This sale was made pursuant to chapter 322, Laws of 1882. The property, when sold, was bid in for the county of Oswego at $110.40, under section 7 of that. act. Two years were allowed for redemption, as provided by section 8; and then, January 28, 1891, a deed was given to. the board of supervisors, as provided by section 9.
It is said further that the deeds purporting to have been made by the board of supervisors Were nullities, because not, made or authorized by such board.
Section 14 of the Oswego act of 1882 provides: “ The title acquired by the board of supervisors in pursuance of this, act shall be held by them in trust for said county of Oswego, . and may be disposed of by them at such times, and on such terms, as shall be determined on by a majority of such board* at any regular or special meeting thereof.”
There seems to have been no action of the board of super
It is said- this transaction between the treasurer and Ha/rriet G. Jenkins, wherein the amount the county had in the property was paid, and deeds were given to Harriet G., amounted in equity, as to the' mortgage in question, merely to a redemption of the property and the extinguishment of the. tax lien,: and not to the vesting of any title to-the'property in Harriet G. as against the mortgage. The facts are not in dispute: The-mortgage was taken i/n -ignorance of the prior sale for tames, amd the mortgagee apparently had no knowledge of the tax sale until. after the ' time to redeem had expired. If the mortgage had been in existence before the tax-sale, notice to redeem would, under the statute, have had to be served upon the mortgagee; but the mortgage having been given after the tax sale, such notice did -not ne.ed to be served," and was not served. The notice was. served upon the mortgagor, the widow1, the mother, who with her daughter Harriet- G. occupied the. premises. This notice was served September 22, 1891. The mother .did not notify the mortgagee of the service of this notice, but, 'two days later, deeded all her interest in the property to her daughter Harriet 0. Redemption could be made at, any' time before. March 22, 1892. Ha/rriet G. did not, notify the mortgagee of the service of this notice, but, as she herself testifies, took the'deed from the board of supervisors October 15,..1891, for the purpose of securing a title to defeat- the. mortgage. She did hot
In 25 Am. & Eng. Ency. of Law, 706, it is said: “ One whose duty it is to pay the taxes may not, by neglecting to pay them, and allowing the land to be sold in consequence of such neglect, add to or strengthen his title, either by purchasing at the sale himself or by suffering a third person to buy and then purchasing from him. A purchase under such circumstances operates as a payment of the taxes, leaving the title in precisely the situation in which it would have stood had the payment been before instead of after the sale. * * * These principles are applicable to * * * a mortgagor in possession and parties claiming under him. Note 3. A mortgagor in possession, or parties claiming under "him, cannot defeat the lien of the mortgagee by acquiring a tax title to the land.” Citing many cases in other states, but none in the state of New York.
' The principle underlying this doctrine is well settled and cannot be doubted. It has been frequently applied in this state to other titles than tax titles. The general rule is that a trustee cannot acquire a title as against his cestui que trust. The' title will ensue to the benefit of and cannot be vested against the cestui que trust. This ride is not, however, confined • to trustees and their cestui que trust, but applies universally to all who come within its principle, which is that no party can be permitted to purchase an interest in property and hold it for his own benefit where he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account. Torrey v. The Bank of Orleans, 9 Paige, 649 ; Van Epps v. Yam Epps, 9 Paige,
. The only question, therefore, is whether Harriet G., the. ■ daughter, was under any obligation, as ^against the mortgage, to pay these taxes and to extinguish this tax lien. 'These ' taxes were, assessed and levied,, and the tax sale was made, while the mother was- the owner bf the property. Then she .gave the mortgage and thus created a second lien on the property. Could she have purchased the title under the tax lien and have asserted Such title against the mortgage ? Certainly not. It was her duty, as between herself and the mortgagee, all .the time to pay the taxes and extinguish the lien. No title could be acquired under the tax sale except by reason ■of a continued neglect of duty on her part to pay the* taxes ■and"redeem from the sale. I do not see how the daughter stands in any better position than the mother. She knew all ■about the mortgage and the tax sale before she took the deed" . from her mother and before she took her deeds from the board of supervisors. Indeed, she testifies her purpose in the whole matter was to defeat the mortgage lien. She paid her’ mother no substantial" consideration. She - kept the tax lien a • secret from the mortgagee for the purpose of defeating the lien -of the mortgage-. The theory of the law is that when .the-occupant gets" the six months’ notice to redeem he will let ■all persons interested in the premises know about it; but in this case the mother and daughter, who were the occupants,. ■ deliberately "planned to- keep the. matter from the mortgagee, Tor the purpose of defeating the mortgage. Had the mortgagee known of the lien, it would -have -paid up the lien and •redeemed, to protect its mortgage. Indeed it tendered the money, after the six months had expired, -ás soon as it learned ' of the lien, , or the purchaser did. I .think the daughter acquired no further or greater rights in the property, by her ■mother’s deed, than her "mother had, and the same duties were"1 devolved upon her, as against the mortgage, that rested upon her mother before the deed was given. And I must hold, therefore, that the deeds by the. board of supervisors vested no
In view of the suggestions herein contained, I must order judgment for the plaintiff.
Ordered accordingly.