180 A.D. 703 | N.Y. App. Div. | 1917
By the judgment appealed from it was determined that plaintiffs are the owners in fee of certain lands situate in the towns of Chili and Wheatland in Monroe county, and that deeds of the same lands made by Frederick A. Brotsch, Sr., and wife to the defendant Pure Strain Farms Company and by Frederick A. Brotsch, Jr., and wife to said farms company are clouds upon plaintiffs’ title and that they be canceled of record.
Defendant’s appeal presents the question as to whether the evidence is sufficient to support the findings upon which the judgment is based.
When the case was reached for trial defendant did not appear and plaintiffs’ proofs were taken as upon defendant’s default. Two days later and before the findings and decision had been signed, defendant’s counsel appeared and requested that the case be reopened, or that he be allowed to enter and file objections to certain of the testimony introduced upon the trial. Plaintiffs’ counsel consented that defendant be permitted to file such objections to the testimony as it might desire. The court thereupon directed that such objections be filed in writing, whereupon defendant’s counsel filed written objections to the receipt in evidence of the two judgment rolls which had been received in evidence, specifying
We shall assume, without deciding, that this is not a judgment by default, and that defendant is in a position to review it upon this appeal.
The proofs given by plaintiffs upon the trial consisted of the introduction of two judgment rolls from the files of Monroe county clerk’s office, and oral testimony by one of the plaintiffs to the effect that plaintiffs were the owners of the property and had been in possession of it since the 22d of March, 1917, continuously; that there had been no change of ownership or possession and that no appeal had been taken from the judgment of foreclosure and sale granted July 14, 1916, which was one of the judgments the roll of which was received in evidence.
The plaintiffs originally held a mortgage upon these lands made by Frederick A. Brotsch, Jr., as mortgagor, for $7,500. It was dated May 1, 1913, and recorded February 5, 1914, and the whole sum was payable one year from date. In January, 1916, plaintiffs began an action to foreclose this mortgage and made parties the mortgagor and wife who had joined in the mortgage, and a large number of subsequent lienors and incumbrancers. The defendants Brotsch and wife served an answer. The other defendants made default in pleading.
The case was regularly upon the June Equity Term calendar for trial and had been placed upon the day calendar, when, on June thirteenth, defendant Pure Strain Farms Company petitioned for leave to intervene, alleging that in or about the month of January, 1911, it became the owner of the lands described in said mortgage; that the mortgage was apparently a lien thereon; that it had an interest in and to the said real property, the title to which is and will be affected by the judgment in said foreclosure action. After hearing the petitioners the application was granted. I quote the essential parts of the order:
“ Third. And it is hereby further ordered that the said Pure Strain Farms Company may have the rights, powers and defense, and may move in this action as though it had been made a party defendant herein in the first instance.
“Further ordered, that the answer of said company shall be served upon plaintiff’s counsel June 14, 1916.”
Pursuant to this order, defendant’s counsel served a notice of retainer and appearance in the action, was served with a copy of the complaint, but instead of serving an answer, appealed from that part of the order which required its answer to be served June fourteenth. The case remained on the calendar and was reached for trial a few days thereafter, when plaintiffs’ proofs were taken and judgment of foreclosure and sale ordered, defendant failing to appear, relying apparently wholly upon its said appeal. The order was afterward affirmed by this court (175 App. Div. 910). Defendant made no effort to open the judgment or to review it upon appeal. Among the findings made by the court were these:
“ Fourth. That said- bond and mortgage were made, executed and delivered for valuable consideration.
“Fifth. That at the time of the execution and delivery of said bond and mortgage the said defendant Frederick A. Brotsch, Jr., was the owner in fee simple of the whole of the premises described in said mortgage, and that the defendant Claribel Bergener Brotsch was the owner of an inchoate right of dower in said premises.”
There was found to be due the plaintiffs upon said mortgage the full principal of $7,500 and interest, amounting in all to $8,922.50. The usual decree of foreclosure and sale was thereafter entered.
Defendant Pure Strain Farms Company filed exceptions to these findings shortly thereafter. In the findings and decree the name of the defendant Pure Strain Farms Company was added in the title of the cause as a defendant in the action.
A day or two before the foreclosure sale the present defendant began an action against these plaintiffs to cancel of record the plaintiffs’ mortgage, on the ground that it was a cloud upon plaintiffs’ title. This case came to trial after the plaintiffs acquired their title under the foreclosure decree, and the complaint in the action was dismissed by the trial court at the opening of the trial upon the pleadings. The judgment roll in that action was also introduced upon the trial in this action, but as the judgment in that case has, since the trial of this action, been reversed by this court, it is not necessary to consider its probative value here.
The question here is whether the decree in the foreclosure action was sufficient of itself to entitle plaintiffs to the relief which has been accorded to them by the judgment now under review.
I think it was entirely sufficient for that purpose.
It is, of course, well settled that a plaintiff in a foreclosure action cannot cut off a title or hen which is, in fact, prior to its rhortgage, by making the holder a party under the general allegation that defendant has or claims some hen or interest
Concededly, the deeds under which defendant claims were not on record at the time plaintiffs received their mortgage. The finding in the foreclosure action is that plaintiffs received their mortgage for a valuable consideration, and at that time defendant Frederick A. Brotsch, Jr., was the owner in fee of the property. So long as these findings stand, I think they are a bar to any further litigation on the question by the defendant here.
A conveyance made for a valuable consideration is presumed to be bona fide within the Recording Acts. (Wood v. Chapin, 13 N. Y. 509; Ward v. Isbill, 73 Hun, 550; Weideman v. Zielinska, 102 App. Div. 163; Turner v. Howard, 10 id. 555; Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476.)
The court before whom the foreclosure action was tried no doubt found in the bond and mortgage recitals sufficient to support the finding which it made that the bond and mortgage were delivered for a valuable consideration.
The fact also that the mortgagor, Frederick A. Brotsch, Jr., was an officer of the defendant Pure Strain Farms Company, and as such verified the petition for intervention by that company, and was himself the grantor in the deed to that company, may have been regarded as significant upon the question of the bona fides of its claim.
All concurred.
Judgment affirmed, with costs.