41 N.Y.S. 1013 | N.Y. App. Div. | 1896
The plaintiff and the defendant entered into a contract by which the jjlaintiff agreed to buy and the defendant agreed to sell to him four lots of land on One Hundred and Seventeenth street in the city of Hew York. The plaintiff paid $1,000 upon the contract and incurred expenses in examining the title. As the result of that examination he declined to proceed with the contract and brought this action to recover the money he had paid and the expenses to which he had been put, for the reason, as he said, that the defendant had not a title to the premises. Upon the trial the plaintiff was defeated. From the judgment entered against him he took his appeal to this court, and the judgment was affirmed. The case is reported in 4 Appellate Division, 9. After the affirmance this motion was made for a new trial upon the ground of newly-discovered evidence, and it was granted. From the order granting a new trial the defendant takes this appeal.
The land in question was owned before 1827 by one Ely Moore. The first transaction with regard to it which appears upon the record is a mortgage from one Furman to one Ely Moore, which was recorded in 1828, which recites a conveyance from Ely Moore to Furman. The deed thus recited was not recorded and there was no evidence of its existence except the recital in the mortgage. By a series of mesne conveyances Furman’s title to this land was conveyed to one Therasson, and from him the defendant’s title is derived. Therasson took his title on the 1st day of January, 1853, and has been in possession since that time, so far as appears. The defect in his title, of course, was the failure to record the deed from Ely Moore to Furman, which was only proved by the recitals in the mortgage.
The adverse title, of the existence of which the plaintiff complained, arose as follows : On the 1st of May, 1845, Ely Moore gave a power of attorney to one Thomas to dispose of this land with other lands, by virtue of which Thomas, as attorney for Moore, conveyed to one Horton on the 1st of December, 1848. Horton retained the title to the property until the 30th of April, 1868, when he con
To obviate this objection the defendant put in evidence a deed from the heirs of Ely Moore to one Motley, made on the 1st day of December, 1864, and recorded on the 4th of January, 1865, and another deed from Motley to Callaghan, recorded on the 27tli of March, 1868, and also a deed from the heirs of Ely Moore to Callaghan, recorded on the 22d of April, 1868. It appeared that Callaghan, on the 20th day of May, 1868, conveyed to Therasson. This court held that the deeds from the heirs of Moore to Motley and Callaghan, having been recorded before these creating the Hawkes title, cured the apparent defect in Therasson’s title and that the defendant’s title thereupon became perfect under the. ¡Recording Acts, so that he could convey to the plaintiff and give a title pursuant to his contract, and affirmed the judgment.
Upon the motion for a new trial it was made to appear that on the 28tli day of October, 1864, Therasson began an action against the heirs of Ely Moore, setting out his title in full, alleging that the heirs claimed, still to be the owners of the property and had begun an action to partition it, and asking as relief that the heirs of Moore be restrained from proceeding with their action of partition, and that they be required to convey to him. In this action the complaint and notice of lis pendens was properly filed on the 28th of October, 1864. It was made to appear also that Callaghan was the attorney for some of the Moore heirs and appeared in that action for them. The defendant claimed that this notice of the pendency of action operated as a notice to Motley and Callaghan of Therasson’s claim adversely to the title of the Moore heirs; and he further claimed that, because they knew at the time they purchased from the Moore heirs that there was an outstanding title, they could not be bona fide purchasers even as against another adverse title of which they had no notice.
The question presented upon this appeal is whether that claim of the plaintiff is well founded. A motion for a new trial upon the
The plaintiff claims that as Motley and Callaghan, when they bought the title of the Moore heirs, had notice by this lis pendens of Therasson’s title, their action in buying was fraudulent as against Therasson, and, therefore, they cannot be holders in good faith as against Horton or anybody else. There are undoubtedly cases which hold that if the purchaser, before paying the consideration, has notice of an adverse claim to the property, he cannot be said to be a bona fide purchaser; but in all these cases the notice which destroyed the bona fides was notice of the claim which was set up as hostile, not as here, where it is conceded that the pur
With regard to Motley, there is no claim that he had any actual knowledge whatever of the Therasson title or of the pendency of the action which Therasson brought. He was simply charged by the lis pendens with such notice as he is required to infer from its filing, although he was not actually aware of the existence of it. As to him, that notice, of course, had only such effect as the statute prescribes (Code Proc. § 132; 13 Am. & Eng. Ency. of Law, 894), and that was to bind him by all proceedings taken in the action after the filing of the notice, to the same extent as if he were a party to the action. If he had actual notice of the pendency of the action, it may be that he would be charged with the knowledge of any information which he might have gotten by inquiry with regard to it; but as he had no such notice, the only effect was that his rights, whatever they were, were bound by the judgment, whatever, that was. (Page v. Waring, 76 N. Y. 463, 474.) There was no judgment in the case, and, therefore, the action had no final effect upon the rights of Motley. As there is no pretense that he had any actual knowledge of the filing of the pendency of the action, he certainly cannot be .charged with any actual fraud in making his purchase, because, so far as appears, he had no actual notice of any adverse title whatever.
If Motley’s deed had been a perfect one, that would be the end of this case. But as Motley’s deed was defective because there was no seal, he only obtained the equitable interest of the Moore heirs, as was held by the prior decision, and it was necessary for Callaghan, in order to perfect his legal title, to get from the heirs of Moore a conveyance of -the naked legal title which apparently remained in them after the sale to Motley. This he did before the deed to Hor
These considerations dispose of this motion, because the new evidence of the plaintiff, as disclosed in the moving papers, is not effectual to attack the good faith of Callaghan or Motley, and thereby deprive them and the defendant as their grantees of the benefit of the Recording Act. For these reasons the motion should have been denied. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion for a new trial denied, with costs.
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for new trial denied, with costs.