75 N.Y.S. 1021 | N.Y. App. Div. | 1902
Lead Opinion
When this case was before the court the first time the submission was dismissed because there was no statement or agreement upon certain facts deemed material, and because there was no agreement for the rendition of judgment in case the controversy was determined in favor of the defendant. (See Zarkowski v. Schroeder, 60 App. Div. 457.) The defects then pointed out have since been remedied, and the case has again been submitted.
The controversy turns upon the sufficiency of the defendant’s title to certain real estate in Queens county on J une 4, 1897, on which date she conveyed it to the plaintiff by warranty deed. The deed was duly recorded in that county on July second following. Since that time, but at what date does not appear, the plaintiff attempted to sell the property, and a contract for that purpose was duly executed, but the purchaser or purchasers refused to take the title upon the ground that the same was “ defective, unmarketable and worthless.” The parties seek by this submission to obtain an adjudication upon the validity of the title.
It is admitted that on August 7,1869, the title to the property in question was vested in John H. Van Mater and wife, who then conveyed it by full covenant warranty deed to John Frederick, and took back from him a purchase-money mortgage for $441, due August 7, 1872, and recorded August 18, 1869. The mortgage was subsequently assigned by various mesne transfers, the last being for full value to Andrew J. Smith, on November 22, 1890. Frederick died in 1892, and on December first of that year Theodore Huhn, claiming to be his executor with power to convey real estate, conveyed the property in question to the said Andrew J. Smith, by deed dated that day, and recorded December 5, 1893. Smith conveyed the property to the defendant by full covenant warranty deed, dated May 7, 1894, and recorded July 13, 1894. In 1896 Smith instituted an action in the Supreme Court for the foreclosure of the purchase-money mortgage, and a decree of foreclosure and sale was entered on December 18, 1896, upder which the defendant
It is conceded by both parties to this controversy that the deed to Smith from- Huhn, as alleged executor of Frederick, conveyed no title, and under the circumstances the plaintiff cannot be permitted to now assert as against the defendant that the purchase-money mortgage in Smith’s liands merged in the defective title, so that it was extinguished by the subsequent conveyance by Smith to the defendant. Whether a worthless title will ever be held to absorb a valid mortgage by operation of merger need not be determined. Smith by foreclosing and the defendant by purchasing at the foreclosure sale have both treated the mortgage as valid and outstanding. As a matter of fact the mortgage was neither canceled nor assigned, and it is well settled that in equity the union of legal and equitable estates in the same person does not effect a merger unless such was the intention of the parties and justice and equity require it. (Sheldon v. Edwards, 35 N. Y. 279; Smith v. Roberts, 91 id. 470; Asche v. Asche, 113 id. 232.)
The only remaining question necessary to Consider relates to the effect of the foreclosure sale. The defendant was not a party to that suit, the theory of the proceedings being apparently that her deed was invalid and that the title to the real estate vested on Frederick’s death in his heirs or devisees, if any. By virtue of the provisions of section 445 of the Code of Civil Procedure his representatives (the service having been made by publication) must be allowed to defend at any time within seven years after the filing of the judgment roll. But this section contains the' further provision that the title to property sold' to a purchaser in good faith shall not be affected thereby. There is no statement in the record indicating that the defendant was a purchaser in bad faith-, or- that she purchased with knowledge of any fact in reference to the title
The record presents other irregularities to which our attention is called by the briefs, but nothing tending to prove that the title is in fact defective. On the main question presented, aside from the protection afforded by section 445 of the Code (supra), it is quite obvious that the danger to be apprehended from possible but undisclosed heirs or devisees of Frederick is more apparent than real, and, as was said in Wilson v. Parshall (129 N. Y. 223, 227): “ There may be an apparent cloud upon the title to real estate con
We think that under the circumstances, upon the facts contained rathe submission, the defendant is entitled to judgment, without costs.
All concurred, except Goodrich, P. J., who read for judgment in favor of the plaintiff.
Dissenting Opinion
(dissenting) :
The question involved in this submission of controversy is-whether the defendant had a clear and marketable title to four lots of land at Maspeth, Long Island, deeded by her to the plaintiff. If she had not, a judgment must be rendered for the plaintiff. If she had such clear and marketable title, a judgment, must be rendered for the defendant.
The defendant, as stated in the brief of her counsel, does not claim title otherwise than through the foreclosure of a purchase-money mortgage executed on August 7, 1869, by John Frederick to Joseph H. Yan Mater simultaneously with a deed given by Van-Mater and wife to Frederick.
Van Mater, in 1870, assigned this-mortgage to Mallory and Blackwell, who assigned it to Von Oehsen, who assigned it to Andrew J. Smith in November, 1890. In May, 1894, Smith deeded the premises to the defendant.
In July, 1896, Smith commenced an action to foreclose the mortgage against “ Theodore Huhn, and the widow, hens at law and devisees of John Frederick, deceased, if any there be, whose names are unknown, and who cannot be ascertained so as to be named by the plaintiff *—the said John Frederick having died at the City of New York, in or about the year 1892, and the People of the State of New York.” The complaint alleged that Frederick was the
An order for the service of the summons upon Huhn and the unknown defendants by publication was made in 1896, the affidavit stating that Huhn was not a resident of this State, and that the names and residences of the widow and heirs of Frederick were unknown to, and could not with due diligence be ascertained by, the plaintiff. The summons was duly published, and a copy of the summons, complaint and order was mailed to the last-known residence of Huhn, in Hew Jersey.
An order of reference was made and testimony taken. The referee reported that Frederick died in 1892, seized of the premises, leaving a will in which Huhn was named as sole executor; that the will- was never offered for probate, and that as- far as could be ascertained Frederick was never married and left no heirs. A judgment of foreclosure was entered, and in 1897 the sheriff conveyed the premises to the defendant. She conveyed them to the plaintiff by a full covenant and warranty deed on June 4, 1897.
The record before us reads as follows :
“ Sixth. The question in controversy between the parties is as follows:
“ Q. Did the defendant by her warranty deed of June 4th, 1897, give to the plaintiff a clear and marketable title to the premises mentioned herein ?
“ The plaintiff claims that the title is not clear and marketable. The defendant claims to the contrary of said proposition. And now the parties agree that the validity of the defendant’s title to the premises mentioned in the complaint in fee simple and free and clear of all incumbrances, at the time of said conveyance, be left to this Court for adjudication; that in the event that -the title be not clear, the plaintiff shall be awarded judgment for the purchase price paid and the damages sustained; that the deed from the defendant to the plaintiff be canceled, and a reconveyance of the property be made by plaintiff to defendant, and that the purchase-money mortgage be canceled and satisfied by the defendant on record, and the*532 bond of the plaintiff given therewith be canceled and returned, and that in the event that the title be clear, judgment be rendered for the defendant.”
As already stated, the defendant claims title solely through the foreclosure. Her title involves the question whether the mortgage merged in the fee.
The mortgage was assigned to Smith on November 22, 1890. In December, 1892, Huhn, describing himself to be the executor of the will of John Frederick of New York, deceased, conveyed the premises to Smith. He alleges that he was empowered to convey. But there is not in the indices or other records of the surrogate of New York county any reference to any proceedings to probate the will, or to any administration of the estate. In May, 1894, Smith deeded to the defendant. The plaintiff argues that although this deed of Huhn was in fact a nullity because Huhn had no title, still, as Huhn under color of title conveyed the premises to Smith and Smith conveyed to the defendant, Smith could not set up that the title which he conveyed was invalid, and an estoppel in pais is thereby created. But this estoppel cannot affect the rights of the heirs, if any, of Frederick.
Both parties concede in their briefs that the Hnhn deed conveyed no valid title to Smith. We are, therefore, not required' to decide this question, but, assuming for the purposes of this controversy that the concession is correct, it would seem to follow that the mortgage did not merge in a fee which the parties agree was not conveyed. The sole remaining question, therefore, is whether the foreclosure proceedings and the sheriff’s sale and conveyance thereunder were regular.
The submission states that the plaintiff’s attorney in the foreclosure action testified that he filed a report of sale, and it is conceded that such a report was filed, though none can be found of record, after diligent search, but no order confirming the sale is referred to by either party.
It is somewhat singular that the defendant, who held a record title to the premises by the deed from Smith, at the time the foreclosure suit was instituted, was not made a party defendant, but this is probably immaterial, as she became the purchaser at the foreclosure sale.
Section 445 of the Code of Civil Procedure provides that where a summons is served by publication, and the defendant does not appear, he or his representative must, on good cause shown, be allowed to defend within seven years after final judgment, where personal service of written notice thereof has not been made. Under this provision the heirs of Frederick might be allowed to appear as defendants and attack the validity of the mortgage. The section also provides that the title to property sold to a purchaser in good faith shall not be affected thereby. There is no statement in the record, nor any fact whereby it can be found whether or not the defendant was a purchaser in good faith. To. my mind the inference from the circumstances is rather against good faith, if any inference can be drawn. The title seems to me to be clouded and doubtful. Consequently, it is impossible to give force to the operation of this excepting provision of section 445, or to decide that the defendant has furnished a “ clear and marketable title.”
Heither am I satisfied that due proof of the facts alleged in the complaint was made before the referee in foreclosure. It appeared by the testimony of Smith only that the mortgage had been burned; that he had made a search for Frederick’s will and that none cquld be found (when or where he searched does not appear); that Huhn informed him that Frederick died in 1892, and that the will was never probated; that he was never married and left no heirs at law. Here was purely hearsay evidence, which, was not a sufficient basis for the referee’s report.
Besides, the mortgage, having been executed in 1869, was moré than twenty years old, and there was no allegation in the complaint in the foreclosure suit, nor any evidence on the reference, showing any payments on account of either principal or interest. This being a submission, the defendant is not required to plead the Statute of Limitations. The presumption, therefore, is that, the mortgage, being more than twenty years old and no interest paid, was outlawed. Seven years have not elapsed since the final judgment, and it is still open to attack by the heirs of Frederick, if any exist.
Judgment for defendant on submission of controversy, without costs.
