237 A.D. 311 | N.Y. App. Div. | 1932
The appellant savings bank, the plaintiff in this action brought to foreclose a mortgage which purports to be a hen upon a city lot occupied by a two-apartment dwelling house, has appealed from a judgment determining that its mortgage is subordinate to a life use by respondent Elsie S. Wellman of the upper flat of the dwelling. The claim to the life use is founded upon an occupancy by respondent at the time the mortgage was given, which it is claimed was open, visible and inconsistent with the title of the record owners.
The mortgage is dated one day later than the deed to the mortgagors, who were the stepchildren of respondent. The application
The respondent is the widow of Walter Wellman. At his death there were living Walter F. Wellman and Elizabeth F. Williams, his son and daughter by a former marriage, the mortgagors in this action. Under his will, among other legacies and devises, respondent received the right of occupancy of an apartment in a house, which some time prior to the events earlier stated in this opinion was sold by the children, she joining in the deed and quitclaiming her life use in the apartment. A written agreement was made at the time of the transfer, requiring the children to provide another apartment for respondent, if one was found that pleased all of the parties, respondent having the option of receiving thirty-five dollars monthly in lieu of the use of an apartment. None of these earlier transactions were known by the plaintiff.
Evidence as to personal transactions between respondent and the deceased children, through whom this plaintiff derived its title, was received. It was inadmissible under section 347 of the Civil Practice Act. (Pope v. Allen, 90 N. Y. 298.)
Respondent to succeed “ was bound to show actual notice * * * of the facts upon which her claim was founded, or such facts and circumstances as would put a prudent man upon his guard, and from which actual notice may be inferred and found. The possession which will be equivalent to actual notice to a subsequent purchaser must be an actual, open and visible occupation, inconsistent with the title of the apparent owner by the record; not equivocal, occasional or for a special or temporary purpose; neither can it be consistent with the title of the apparent owner by the record.” (Holland v. Brown, 140 N. Y. 344, 347, 348.) The occupancy shown by respondent was as consistent with a contemplated tenancy by the month or year as with a right of occupancy inconsistent with the title of the record owners. Her furniture had been stored in the house one day, and she was present during the hours the decorators worked on that day and had her lunch there. It has been said: “ All the cases agree that notice will not be imputed
The judgment should be reversed on the law and facts, with costs, and judgment directed in favor of the plaintiff, adjudging its mortgage to be superior to the -lease of the defendant and a lien upon the entire premises described in the mortgage.
Van Kirk, P. J., Hinman, Rhodes and Crapser, JJ., concur.
The court reverses findings of fact numbered “ sixth ” and “ eleventh ” and makes a new finding of fact, that the occupancy of Elsie S. Wellman in the premises subjecb to the lien of said mortgage was not at the time of the giving thereof an actual, open and visible occupancy inconsistent with the title of the mortgagors Walter F. Wellman and Elizabeth F. Williams, the owners of the record title.
Judgment reversed on the law and facts, with costs, and judgment directed in favor of the plaintiff, adjudging its mortgage to be superior to the lease of the defendant and a lien upon the entire premises described in the mortgage.