34 N.Y.S. 962 | N.Y. Sup. Ct. | 1895
On the 20th June, 1837, Jonathan and Ransom Scott, being then the owners of 150 acres of land in the town of Scott, in the county of Cortland, gave' a mortgage thereon to the loan commissioners of Cortland county for the sum of $496. The foreclosure of this mortgage and -the sale thereon on the 7th February, 1888, of 56 acres, a portion of the mortgaged premises, then owned by the defendant Frank B. Jenks, have given occasion to this litigation. The purchaser at the sale was the defendant Frank L. Cuddeback, who thereupon took possession of the property, dis
In the action against Quinn on the warranty, the defendant therein alleged among other things that by the covenant in the deed from Daniel to John Curtin the 79 acres became primarily charged with the whole of the loan mortgage; that the charge continued down to the time of the sale, and was known to Frank B. Jenks, as Well as to Hunt, the owner of the 79 acres; that Jenks was present, and took part in the sale; that the holders of the loan mortgage sold the 56 acres first at the request of Hunt and with the consent of Jenks, and without any objection from him, or demand that the 79 acres should be first sold; and that Jenks is estopped from claiming on the warranty. It appeared on the trial that Quinn was duly notified of the sale, and promised Jenks to be present and protect him as to the 56 acres; that he failed to be
There is evidence tending to show that before the sale the
But the plaintiff claims that an essential circumstance in the determination of the case of Jenks v. Quinn was the absence of a finding that Frank B. Jenks had actual notice of the covenant in the deed from Daniel to John Curtin, and that in the present case, he has shown the fact of such actual notice. The evidence, however, on that subject is contradictory, for Jenks testifies that he never had any actual notice of the covenant of Daniel Curtin. Be that as it may, the issue as to such notice was fully raised in the former case, and Quinn had full opportunity to try that issue. No good reason is presented for trying it over again in this case, within the well-settled rule on that subject. In Mayor, etc., v. Brady, 115 N. Y. 599, 22 N. E. 237, it was held, as summarized in the headnote, that: “No court has authority to vacate and set aside a judgment of a court of co-ordinate jurisdiction upon the ground that the contract upon which it was based was fraudulently obtained, or that there had not been an honest and fair performance thereof, in the absence of proof that the defendant in the action wherein the judgment was obtained was prevented by some act or contrivance of the plaintiff, or by some accident unmixed with negligence of himself or his agents, from prosecuting his defense therein. The fraud which will authorize one court in a collateral proceeding to revise the judgment of another court is a fraud practiced in the procurement or concoction of the judgment, by which the defendant was prevented from availing himself of some defense. Ignorance of facts constituting a defense does not excuse the omission of a party to make it, or entitle him to the aid of equity, unless it can be shown he could not have acquired the information by diligent and careful labor in preparing the cause for trial.” In view of the law as thus laid down, we are of the opinion that the trial court did not err in holding that no sufficient reason existed for setting aside the judgments in Jenks v. Quinn as invalid.
Assuming those judgments to be valid, is it shown that the
But the plaintiff claims that the purchasers under William D. Hunt are chargeable with knowledge of the existence of the loan mortgage and of the covenant of Daniel Curtin. To this it is replied that Hunt held under a sale upon, the mortgage- given to Pardee, which was in renewal or substitution for a purchase-money mortgage that was prior to Daniel Curtin’s covenant, and that equiV tably, therefore, Hunt’s title was not subject to that covenant. It is also suggested that the deed from Daniel to John Curtin, in which was the covenant referred to, was not a link in-the title of the' 79 acres, and so the doctrine of constructive notice does not apply. Acer v. Westcott, 46 N. Y. 384. The covenant was not ref erred to in the deed from John to Daniel. There was proof that the purchaser from Hunt, the defendant Childs, had no actual notice of the covenant of Daniel. If there was constructive notice, still he had a right to believe that the sale was legal, as it was finally' decided to be, and that it operated to discharge the mortgage. He knew that his grantor advanced his proportion, and he was informed that the other owners had agreed to pay the balance. The trial court was, we think, justified in its conclusion that Childs and his subsequent grantees, the defendants Sweeney, were purchasers in good faith for value, and without notice of plaintiff’s equities. There is also evidence tending to show that the present owner of the 56 acres, the defendant Anderson, purchased in good faith, without any knowledge or information that the plaintiff claimed that the sale was as to the purchaser invalid.
As the case stands, we cannot properly say that the court erred in holding that the plaintiff was not entitled to equitable relief. It is not a case where there has been no change in the situation, as in the case cited of Vilas v. Railroad Co., 123 N. Y. 440, 25 N. E. 941.
It is argued on the part of the appellant that the amount of the recovery in the warranty suit was inequitably large, and that relief should be given here. On the contrary, we must assume that the amount there allowed was correct. All the facts in regard to that subject were before the court, or the defendant there had full oppor
But the plaintiff claims that in this action he should recover against some of the defendants damages for the improper sale of the 56 acres, either on the ground of fraud and conspiracy or in accordance with a suggestion to be found in the opinion delivered in Jenks v. Quinn in the court of appeals. As no fraud or conspiracy is found, relief cannot be given on that basis. In the opinion in the court of appeals it is said: “The covenant of Daniel Curtin to pay the mortgage charged him and his land with its payment. If the same obligation devolved upon his grantee, and the benefit of it passed to the defendant, then their grantees may be liable to him upon the facts adjudged,”—citing the case of Wilcox v. Campbell, 106 N. Y. 325, 12 N. E. 823. In that case a purchaser of a portion of mortgaged premises, who assumed and agreed to pay as a part of the purchase price the whole mortgage, was held liable to respond in damages to the grantee of the balance of the premises, for his failure-to pay the mortgage and the consequent sale of the whole property. The doctrine of principal and surety was applied.
Daniel .Curtin is not a party to this action. In the transfer to William D. Hunt, no personal liability was imposed upon him to pay the mortgage in question, nor was there upon his grantees. So that the rule laid down in the Wilcox Case and the suggestion in Jenks v. Quinn would not seem to apply. Besides, the plaintiff has not yet paid anything on his liability. Halsey v. Reed, 9 Paige, 446. The judgment against him is not proof that the debt is paid or will be. 2 Sedg. Dam. (8th Ed.) § 802.
We have thus considered the main questions, in the case, and all that seem to call for discussion, and we find no ground upon which we can properly base a reversal. It follows that the judgment must be affirmed. Judgment affirmed, with costs.