103 N.Y.S. 860 | N.Y. App. Div. | 1907
. The only question here presented is, whether the appellant’s assignor was justified in refusing to accept- title to certain real property in the city of Few York, and further to perform the requirements of a contract for the purchase thereof. There is no substantial dispute upon material facts. The agreement referred to covered two parcels of property, and recited that,one parcel “is subject to the following mortgages: $4,500 bearing interest, at 5$ per annum, payable semi-annually, principal-being .due Feb., 19.05, and a second mortgage of $3,250 bearing interest at 6% per annum, payable semi-annually, principal being due on or before .one and one-half years from Feb. 27, 1905.” There is no proof or claim of deceit or fraud having been exercised, but it appears that -both of said
The learned trial justice found as matter of law that the objections made by the plaintiff’s assignor were without substance and not well taken ; that the title of the defendant at the time the agreement was made, and at the time the deed was tendered by.him and performance- demanded, was good and marketable, and dismissed the complaint upon the merits.
The rule is stated in Feist v. Block (115 App. Div. 211) to be that as to incumbrances of record, .specified in the contract, -the vendee is chargeable with notice of all that the. record shows, and may only rely upon the contract to the extent that it contains express representations concerning the provisions of the incumbrances, citing in support of such rule Feltenstein v. Ernst (49 Misc. Rep. 262; affd., 113 App. Div. 903); Acer v. Westcott (46 N. Y. 384);
The judgment must be affirmed, with costs.
Woodward, Jenks and G-aynor, JJ., concurred.
Judgment affirmed, with costs.