Becker v. McCrea

• Decision Date: 17 November 1908
• Citation: 193 N.Y. 423,86 N.E. 463
• Parties: BECKER et al. v. McCREA et al.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 423

86 N.E. 463

BECKER et al.

v.McCREA et al.

Court of Appeals of New York.

Nov. 17, 1908.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by C. Adelbert Becker and another against Maggie McCrea and others. From a judgment of the Appellate Division (119 App. Div. 56,103 N. Y. Supp. 963), affirming a judgment of the Special Term (48 Misc. Rep. 341,94 N. Y. Supp. 20) in favor of certain defendants, plaintiffs and defendant Maggie McCrea appeal. Reversed, and new trial granted.

Brainard Tolles, for appellants.

J. Addison Young, for respondents.

CULLEN, C. J.

This action was brought for the partition of certain lands in West-chester county, claimed to be owned by the plaintiffs and certain of the defendants as tenants in common. The premises were not in the actual possession of these parties, but were held and occupied by the respondents, the defendants Anne B. Eddy and others. It appears that on May 1, 1877, Jane B. Eddy conveyed to Bernard Spaulding the premises in question. From him the appellants deduce their title. It further appears that, contemporaneouswith the conveyance to Spaulding, he executed a mortgage of the same premises to said Jane B. Eddy to secure a portion of the purchase money. On July 25, 1878, default having been made in the payment of that mortgage, said Eddy instituted an action in the Supreme Court for the foreclosure of the same, in which action a judgment of foreclosure and sale was entered on April 22, 1879. No sale was ever had under this judgment, but some time in the year 1879 said Jane B. Eddy entered into possession of the mortgaged premises and held the same until her death (subsequent to the commencement of this action) in February, 1905, when her title devolved upon the respondents, the executors and trustees of her will. Mrs. Eddy was made a party to the action. The complaint set forth the mortgage, the ignorance of the plaintiffs as to its validity, and charged that the same had been paid or was barred by the statute of limitations. Judgment was demanded that the rights and claims of all the parties to the action be ascertained and determined, that partition of the premises be made, or that a sale of the same be had. The respondents, Mrs. Eddy's executors and trustees (she having in the meantime died), answered, claiming to own the premises in fee, and setting up adverse possession in themselves and in their testatrix for more than 20 years. The Special Term rendered judgment in favor of these last-named defendants, holding that the rights of the plaintiffs and the other defendants were barred by lapse of time. That judgment has been affirmed by the Appellate Division.

The whole controversy depends upon the character of the possession taken and held by Mrs. Eddy, and on the interpretation to be given to section 379 of the Code of Civil Procedure. The learned trial court found that no part of the mortgage had been paid; and, as to the entry and possession of Mrs. Eddy, its findings are as follows: ‘In the year 1879 the said Jane B. Eddy, with the knowledge and consent of the said Bernard Spaulding and the defendant Maggie McCrea, entered into the open, actual, and visible possession and use of the said premises described in the complaint in this action, and became a mortgagee in possession of said premises.’ ‘That the said Jane B. Eddy continued in such possession and use of said premises up to the time of the commencement of that action, a period of 25 years and upwards, and until the time of her death, as hereinafter found, and continuously cultivated and improved the same, ploughing and planting and raising crops thereon, cutting the meadow, using the timber, building roads and walls thereon, and also built a barn upon the same, and received the fruits and benefits of said premises, and possessed and improved the same as owners are accustomed to possess and improve their estates, and that such possession and use and said acts of ownership by the said Jane B. Eddy were continued, during all said period, with the knowledge and acquiescence of the defendant McCrea, and no claim adverse to such use and occupancy was ever made by said defendant McCrea until the spring of 1904, nor did she at any time, from 1879 to 1904, pay any taxes or assessment on said property or use or occupy the same.’

On these findings it determined as conclusions of law: ‘(1) That the said Jane B. Eddy in the year 1879 became and was a mortgagee in possession of said premises. (2) That the possession of said premises by said Jane B. Eddy was, for more than 20 years prior to the commencement of this action, exclusive, hostile, and adverse to the defendant McCrea. (3) That by reason of such adverse possession by said Jane B. Eddy the right of plaintiffs and said defendant McCrea to redeem from said mortgage is barred.’ The findings of fact are conclusive in this court, the affirmance of the Appellate Division having been unanimous, but the question remains whether those findings support the legal conclusions and the judgment founded thereon. That the possession of Mrs. Eddy was not adverse in the ordinary sense of the term is quite apparent, for she entered with the consent of the owner of the equity and, as found, became a mortgagee in possession of the premises. Under our statutes, contrary to the common law, a mortgage creates no estate in the land, but is merely a lien on the mortgaged premises. Since his right to recover the premises in ejectment upon default has been abrogated by the statute, one cannot become a mortgagee in possession unless his entry is with the consent of the owner of the equity of redemption, express or implied. Howell v. Leavitt, 95 N. Y. 617;Barson v. Mulligan, 191 N. Y. 306, 84 N. E. 75. Therefore, when a mortgagee enters into possession with such consent, it is in no sense in hostility to the title of the mortgagor. In Packer v. Rochester & S. R. R. Co., 17 N. Y. 283, it is said by Judge Pratt: ‘* * * The mortgagee holds simply a chose in action, secured by a lien upon the land. Since the Revised Statutes there is not an attribute left in the mortgagee, before foreclosure, upon which he can make any pretense for a claim of title; for the...