37 N.Y.S. 729 | N.Y. App. Div. | 1896
Lead Opinion
The appellant and respondent were the owners of adjacent premises between Seventy-fourth and. Seventy-fifth streets, Fifth and Madison avenues in the city of New York. By an agreement that had been executed by former owners of these two properties an irregular strip of land upon the rear of the said lots was always to remain unbuilt upon, it being expressly provided that this covenant should run with the land and should bind the heirs and assigns of the parties to such agreement. It Was not disputed but that the effect of this agreement was to give to the land of each of the. parties to it an easement in the land included within the strip described belonging to the other party to the agreement. Thus the strip of land described in the agreement that belonged to the party of the first part would be subject to an easement appurtenant to the property of the party of the second part, and the strip of land described in the agreement belonging to the party of the second part would be subject to an easement appurtenant to the property of the party of the first part. The property of the party of the first part to this agreement was subject to a mortgage at the time the agreement was executed, which was superior to the easement granted by the agreement in question. But by this agreemént an interest in the real estate therein described as belonging to the party of the first part Was conveyed to and vested in the party of the second part subject to such mortgage. That' mortgage was foreclosed and the property sold under a decree in the action brought to foreclose it, from which sale there resulted a surplus of $4,019.69, and, in surplus money proceedings, the whole of that surplus was awarded to the respondent, on the ground that the appellant, as the owner of the land to which the easement in question was appurtenant, had no interest in the property foreclosed which would entitle her to an award of any portion of such surplus money. That position, I think, was erroneous.
The referee seems to proceed upon the theory that, as the appellant had no lien upon the property that could be enforced, she- was not entitled to any of this surplus money. It is clear that she had
■The object and purpose of the foreclosure suit was the distribution of the fund arising upon the sale, and the rights and equities of 'the- defendants,. who were lienors or claimants of .the equity of. redemption, were before the court. (Bergen v. Carman, 79. N. Y. 146.). The appellant was made a party defendant because she had such an interest in the land as that the sale of the land by the referee in the foreclosure suit would convey her interest in the land to ' the purchaser, and such conveyance did convey her interest in the land, and such interest as she had vested in the grantee in the ref-' eree’s deed. She was entitled, therefore, to such proportion of .the surplus money as would represent her interest in the' estate thus
The easement of the appellant, however, was not an interest in all of the property conveyed by the referee. It was merely an easement affecting the property described as the space of land which should always remain unbuilt upon, belonging to the party of the second part in the agreement creating the easement, being a piece of land thirty-eight feet and nine and a half inches in length, five feet in breadth upon the center line of the block and seven feet and seven one-hundredths of an inch in breadth upon the southerly side of said strip. The appellant had no interest in the remainder of the land covered by the mortgage, and was not entitled to any of the proceeds of such land. It was the duty of the referee, therefore, to have ascertained the proportion that this strip of land bore to the whole property mortgaged and then to have apportioned the surplus money in the same proportion, and to have distributed the proportion of the surplus money standing in place of such strip of land between the appellant and the respondent, giving to the appellant the value of her easement in this strip of land, and to the respondent the balance of the amount of the surplus money apportioned to this strip of land.
The interest that these two parties held in this surplus money that was the proceeds of the sale of this strip of land bears a close resemblance to that of the owner of the fee of land, subject to an easement where the land has been taken under the right of eminent domain"; and in such a case it is settled that the amount awarded for the value of the land stands in the place of the land and is to be divided among those owning the land, and a person owning an easement in such a strip of land is entitled to a substantial 'amount of such award. (Matter of Eleventh Avenue, 81 N. Y. 449.) Such an award was there apportioned between the owner of the dominant and the owner of the servient estate, the court saying: “ But the commissioners having, under the direction of the court, awarded substantial and just compensation for the rights and interests of all parties interested in the lands, and having treated them as subject to no public rights, the aggregate of this compensation must represent the entire value of the land taken, and there seems to be no means
Van Bbunt, P. J., and Williams, J., concurredPatteesón and O’Bbien, JJ., "dissented. ■ ■
Dissenting Opinion
(dissénting):
This court is not now directly cóncérned- with the question ás to the éxtént Or amount of Mrs. MaXWell’s intérest in the fund. She dabs not claim tó be interested' in the whole premises, but only .to that part Over" which she- had an éaséménf. But if shé háda’ny interest iii that part, .her Offer ¡to prevé the valué of stich interest should have been entertained; and the question iipOn this appeal arises out of the riding by the- referee' in excln’ding evidence Of the valúe óf áppeHánt’s intérest in the premises-, and in refusing to Consider h'er claim to the surplus 'moneys. This surplus ar'ó'sé by foreclosure of the inórígage,, and thé premises have been converted into money, thé whole Of which has been awarded to Mrs. Bafhéy as the owner of the equity of redemption-. The appellant Contends that this award was illegal, the contention being that this 'sale Under ■ foreclosure, as bétWéeh the parties to -this appeal, was in effect & sale
It must be conceded that the appellant had, by virtue of the agreement of December, 1891, an easement in the mortgaged property, Mrs. Barbey’s predecessor in the title having conveyed by such agreement to Mrs. Maxwell’s predecessor in title, for a valuable-consideration, ail easement in the premises, subject, however, to an outstanding mortgage. The agreement creating the easement by its terms does not grant any part of the fee, but reserves a certain space in the rear of each lot for light and air, which agreement, being subsequent to the mortgage, was cut off by the foreclosure and sale, and thereby both Mrs. Barbey and Mrs. Maxwell have lost their rights in the respective lands of the other party, and Mrs. Maxwell now holds her lot free .and clear of any easement in favor of what was formerly Mrs. Barbey’s lot. Prior to such foreclosure Mrs. Maxwell could compel the person owning the adjoining premises to respect the easement, either by a suit in equity restraining the breach of the covenant or by an action for damages in case the covenant should be broken. But she claims more, and contends that by reason of her rights having been cut off by the foreclosure of the mortgage to which they weré necessarily subject, she now occupies-a better position than the one she had before and is to be treated as if she had been a joint owner of the fee. We fail to see how she can maintain this position as joint owner hi the Whole or part of the premises, in the absence of any conveyance to her of any portion of the land in question, or of any agreement which creates a right or title in and to any portion of the land itself. As stated, what-
The theory of the claimant Maxwell is that she has some right in the land that is transferred to the surplus fund upon a supposed analogy between her case and that of an award for private property taken for public use where the easements of abutting owners are compensated for. The analogy, however, 'does not hold good, for that is done under statutory proceedings and the compensation for taking the easement is made directly through such proceedings and as a necessary part ■ thereof. (Matter of Eleventh Ave., 81 N. Y. 447.) In the case cited, which was a proceeding to acquire lands for streets- in the city of Mew York, an award was made for the full valúe of the land to unknown owners, and it was therein held that the owner of the fee was not entitled to the whole award; that where a perpetual easement in the land is vested in another person, the latter is entitled to the value of his easement.
. Mor is the appellant’s interest to be likened to the claim of a lessee -in possession under a covenant for quiet enjoyment, as wi-lí be seen by reference- to the- principle controlling in eases of that kind, ■ and clearly enunciated in the case of Clarkson v. Skidmore (46 N. Y. 301, 306), where the-opinion was written by the same learned judge-who-delivered-the opinion of the court in Matter of Eleventh Ave. (supra). In Clarkson v. Skidmore, a lessee for years of mortgaged
. We think that this case in principle is applicable upon the facts here appearing. The easement which the appellant acquired was subject to the mortgage which has been foreclosed. This right was at best but a defeasible interest in the property. The effect of the foreclosure was to vest in the purchaser the entire interest in the ■estate of the mortgagor and the mortgagee as of the date of the mortgage and unaffected by subsequent incumbrances and conveyances by the mortgagor. (Rector, etc., v. Mack, 93 N. Y. 488.) In that case, as in this, an easement was created -subject, to a mortgage, .and the property was conveyed subject to the mortgage,, but without ■any liability on the part of the person who. took .the conveyance, to pay ,the sanie, and although the latter purchased on the foreclosure, it was held that she owed no duty to the plaintiff or mortgagee, requiring her to pay off the mortgage, and so there was no equity
■ It, therefore, narrows down to this: That while in one sense Mrs. Maxwell acquired an interest in the, land of Mrs. Barbey by reason of the easement created, this did not constitute her a joint owner or tenant in common, nor confer upon her any estate in the fee of the land. It was created by an agreement containing no personal covenants which would give any right to damages, and was a defeasible interest because expressly subject to the mortgage. The effect of the foreclosure, therefore, must be regarded as within the contemplation of all the parties to the agreement,. which, by destroying the. easement that Mrs. Barbey had, equally took away and destroyed the mutual easement given in the property of Mi’s. Maxwell.
Upon the ground, therefore, that the appellant had no such inter- ' est in the land as entitled her to be compensated out of the surplus, the order appealed from should be affirmed, with costs.
Patterson, J., concurred.
Order reversed, with ten dollars costs and disbursements to abide the final event, and the case sent back to the referee as directed in opinion.