11 N.Y.S. 705 | New York Court of Common Pleas | 1890
The motion is to strike out answer as frivolous and for judgment. An action is brought to foreclose a purchase-money mortgage. The answer in question admits the making of the mortgage, and default in paying the installment due-. Hone of the material allegations of the complaint are denied, unless it be the execution of the bond, which must be through inadvertence; but this is cured, because, in setting up the affirmative defense in the answer, the execution of the bond is expressly averred. The defendant alleged as a defense that plaintiff conveyed the premises to her by a full covenant warranty deed, and avers facts to show that the deed did not convey the fee of the whole premises, but that there was a paramount title to one-fourth of it in one Annie Metzger, at the time of the conveyance. She admits that she entered into the possession of the premises, and there is no claim that she has not continued to be and is not now in undisturbed possession of them.- She had neither been evicted nor disturbed in her possession^ nor has any adverse action been commenced, as far as appears from the pleadings. Ho one has asserted or claimed a paramount title or a right of the-possession, nor is it maintained that the plaintiff is not wholly solvent. In Abbott v. Allen, 2 Johns. Ch. 519, Allen, with his son, gave a deed in fee, with' covenants for seisin in fee, with right to convey, for quiet enjoyment and? against incumbrances, and with a general warranty. A purchase-money mortgage was given for a part of the consideration. Believing title to have failed, Abbott filed a bill, in which he set forth the facts, and alleged the defect of the title, and prayed that the defendant should perfect the title or pay the plaintiff the deficiency, and be enjoined in the mean time from all proceedings on the bond and mortgage, and an ex porte injunction was granted, and the defendant moved to dissolve it on the facts, and that motion prevailed; the chancellor saying: “This case comes within the general doctrine declared in Bumpus v. Platner, [1 Johns. Ch. 213,] that a purchaser of land who is in possession cannot have relief here against his contract to pay on the mere ground of defect of title, without a previous eviction. * * * It would lead to the greatest inconvenience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts, or takes any measures to assert a hostile claim, can be permitted, on suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase money, and of all proceedings at law to recover it. Can this court proceed to try the validity of the outstanding claim in the absence of the party in whom it is supposed to reside, or must he be brought into court against his will to assert or renounce a title which he never asserted, and perhaps never thought of?” If such a state of facts was insufficient to main