Ostrander v. Hart

• Decision Date: 20 January 1892
• Citation: 29 N.E. 744,130 N.Y. 406
• Parties: OSTRANDER v. HART et al.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 406

29 N.E. 744

OSTRANDER

v.HART et al.

Court of Appeals of New York,

Second Division.

Jan. 20, 1892.

Appeal from supreme court, general term, second department.

Ejectment by Russell W. Ostrander against Joseph Hart, executor and trustee, and others. Judgment for defendants in the trial court was affirmed by the general term. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by VANN, J.:

This was an action of ejectment, brought to recover the possession of eight lots of land situated in the village of West Flushing, county of Queens, of the value of $2,000. The defendant Joseph Hart, individually, owned the premises in question on the 6th of July, 1878, when he filed a petition in bankruptcy, and included said lands in his schedule of assets. On the 9th of August following said Hart was duly adjudged a bankrupt, and on the 11th of April, 1879, one Louis F Post was appointed assignee of his estate. The premises in question were conveyed to the assignee by the register in bankruptcy on or about April 17, 1879. On the 23d of April, 1887, by due course of procedure in bankruptcy, the interest of Hart in said premises at the time when his petition was filed was sold to the plaintiff by said assignee for the sum of $50. August 17, 1876, said Hart, who then owned the premises, and Sarah Hart, his wife, executed and delivered to one Sanders a mortgage thereon, collateral to a bond of even date, to secure the payment of $7,000. Said mortgage was subsequently foreclosed by advertisement under the statute in behalf of said Sanders, the date of the first publication of the notice of sale being March 27, 1879; and on the 20th of June, 1879, said premises were sold thereunder to Sarah Hart, who afterwards died in possession of the same, leaving a will by which Joseph Hart was made trustee for the benefit of her children, and authorized to sell her real estate. Under this will Joseph Hart, as trustee, on the 16th of February, 1886, sold the lands in question to the defendant Prince, who, through his tenants, was in possession of the same when this action was commenced. In February, 1885, said Sanders commenced an action in the supreme court against Joseph Hart individually and as executor and trustee under the last will and testament of Sarah Hart, deceased, Louis F. Post, as assignee in bankruptcy of Joseph Hart, and others, and demanded, as the relief to which he deemed himself entitled, that the affidavits made and recorded in said foreclosure proceedings should be adjudged void and canceled of record; that all the rights of the defendants in said premises should be foreclosed, and the premises sold to pay said mortgage. He based his claim to this relief upon the allegation that at the time of said statutory foreclosure he believed he had money enough in his possession belonging to said Joseph Hart to pay said mortgage, which he foreclosed at Hart's request for Mrs. Hart's benefit, so that she could bid in the premises, but that he was afterwards compelled by a judicial proceeding, to which neither Hart nor his wife was a party, to apply said money in another direction. Said Louis F. Post, as assignee, did not answer or appear in said action, although the summons and complaint were personally served upon him. Joseph Hart, both individually and as trustee, served an answer, in which he alleged that Sanders duly agreed with Sarah Hart to convey the mortgaged premises to her without charge, or to have the same struck off to her at the sale under the foreclosure proceedings then pending. He made no demand for relief against any co-defendant, but simply asked that the complaint be dismissed, with costs. No copy of the answer was served on Post. Upon the trial of that action the court found that on the faith of the agreement bet ween Sanders and Mrs. Hart she advanced moneys to her husband, and that she acquired rights under the sale that her estate was entitled to hold, although the claim secured by the mortgage was paid. A decree was entered against the plaintiff, Sanders, in favor of Hart, as trustee, etc., and of his children, who appeared by guardian ad litem, ‘that the foreclosure proceedings set up in the complaint were regular and valid, and the plaintiff is not entitled to have the same vacated or set aside; that the title to the mortgaged premises was duly and regularly vested in Sarah Hart during her life-time; and that the defendants aforesaid have judgment herein upon the merits against the plaintiff.’ The remainder of the judgment was for costs in favor of Hart and his children against said Sanders as plaintiff. No other relief was granted in favor of or against any party to the action. The trial court, after finding the foregoing facts, in substance, found as conclusions of law that said decree was a bar to this action; that Sarah Hart acquired a good title to the premises, and that it is now vested in the defendant Prince; that the sale by Post, as assignee, conveyed no title to the plaintiff, as Joseph Hart had been divested of his interest by the foreclosure of the prior mortgage, and directed that the complaint be dismissed, with costs.

E. Countryman, for appellant.

James B. Lockwood, for respondents.

VANN, J., ( after stating the facts.)

The learned judges of the general term were of the opinion that the judgment in Sanders v. Hart was a bar to a recovery by the plaintiff in this action, and they affirmed the judgment rendered by the trial court...