38 N.Y.S. 304 | N.Y. App. Div. | 1896
On the 2oth of February, 1893, the parties to this action made a contract ,by which the defendant agreed- to sell to the" plaintiff certain premises in the city of’ Hew York for the price of" §29,000, to be paid by the plaintiff, and upon- which, at the time of the execution of -the contract, the plaintiff paid $1,000. .After the-contract
It.is conceded by both parties that Ely Moore was the owner in fee of these premises down to December, 1827, and the defendant claimed title under Ely Moore. He produced, however, no deed from Ely Moore directly, but endeavored to establish the fact that a deed had been executed and delivered in the following way : He produced and put in evidence a mortgage from one Job Furman to Ely Moore dated the 10th day of December, 1827, and properly recorded, mortgaging the premises in question to Moore to secure a sum of money and containing the following recital: “ Being the same premises which Were conveyed by said Ely Moore and Emmeline, his wife, by their indenture, bearing even date herewith, as by reference thereto will more fully appear.” There was no other proof made of the existence of a deed by Ely Moore to Furman. The defendant deduced his title by a series of mesne conveyances from Furman. These conveyances were all properly recorded. In addition to that the defendant produced a conveyance from the heirs of Ely Moore to one Motley, dated the 1st day of December, 1864, and recorded in January, 1865, reciting a consideration of $1,000 paid to the grantors. He also produced and put in evidence a deed from the heirs of Ely Moore to one Callaghan, dated in March, 1868, and recorded on the 22d day of April, 1868, and he produced and put in evidence a conveyance from Motley to Callaghan and conveyances from Callaghan through divers persons to himself. This was the title upon which the defendant relied.
It is quite apparent that, so far as the heirs at law of Ely Moore were concerned, these several conveyances gave to the defendant a perfect title to the premises. Ho element of proof was lacking to complete that title. Although the deed from Ely Moore to Furman was not produced, yet the recital in the Furman mortgage that the
. At the foundation of the opposing title is a deed made by Ely Moore, through his attorney, to one Norton,-in 1848, and .recorded on the 2d day of May, 1868. The power of attorney, by virtue of which this deed was made, was recorded at the. same time with the deed-. There are some defects in this-power of attorney which it is not material to notice here, Norton conveyed to Hawkes by a deed which was also recorded on the 2d of May, 1868, and Hawkes mortgaged the property for a. substantial amount, and that mortgage is still outstanding.
The plaintiff claims .that the records of the deeds-from Furcnan by mesne conveyances to the defendant were not operative as against the deed to Norton because, as there was no conveyance, on record from Moore to Furman, these deeds did not.give any notice that Furman derived his title from Moore. The rule undoubtedly is, that the record of the mortgage from Furman to Moore, although it contained a recital of the deed from Moore to Furman, was no- notice, under the Recording Act,, to a subsequent purchaser of the existence of the deed from Moore-to. Furman .which was mentioned in the recital. (Wade on Notice, § 207; Losey v. Simpson, 11 N. J. Eq. 246; Veazie v. Parker, 23 Maine, 170.) If that were all there was of the title of the defendant, it might be that the outstanding title would be the. better one> because of the provisions of the Recording Act*, which are that every conveyance- not recorded shall bo void as against any subsequent purchaser in good faith and for a valuable- consideration
- AH the facts upon which this title depended appear by the record, and are necessarily established when the record is put in evidence. For that reason the title was not only a good one, but it was marketable (Fleming v. Burnham, 100 N. Y. 1), and the judgment dismissing the complaint was proper, and should be affirmed, with costs,
Yan Brunt, P. J., Barrett, O’Brien and Ingraham,. JJ., concurred;
Judgment affirmed, with Costs.