Hayes v. Nourse

• Decision Date: 28 June 1889
• Citation: 22 N.E. 40,114 N.Y. 595
• Parties: HAYES v. NOURSE.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 595

22 N.E. 40

HAYES

v.NOURSE.

Court of Appeals of New York,

Second Division.

June 28, 1889.

Appeal from a judgment of the general term of the court of common pleas of the city of New York, affirming a judgment for the plaintiff for $2,650 damages, entered on the report of a referee. In 1819, Peter Kemble owned in fee and was in possession of two lots now known as No. 56 Marion street, and No. 91 Crosby street, in the city of New York. February 1, 1823, he died, having devised these lots to his five children, share and share alike. His will was duly probated. April 7, 1824, four of the devisees conveyed these lots to the fifth devisee, Mary Kemble, who recorded her deed, and subsequently (the date not appearing) took possession under her deed, remained in possession until October 5, 1854, when she conveyed the lots to James N. Paulding, who recorded his deed, immediately took possession under it, and remained in possession until August 30, 1884, when he conveyed the lots to the defendant in this action in trust for the benefit of creditors. March 25, 1885, the defendant sold the lots by public auction to the plaintiff for $26,100. She paid down 10 per cent., $2,610, and $40, auctioneer's fees,-total, $2,650; and contracted to pay the remainder of the price, and take a deed, April 15, 1885. But before that date she discovered facts which, she asserts, make the defendant's title defective, or, at least, so doubtful that she is entitled to rescind the sale, and recover the amount paid. By mutual agreement the time for the performance of the contract was extended to May 16th, when the plaintiff finally refused to take the title, demanded the repayment of the $2,650, and on the same day began this action. The facts discovered were: (1) A bill filed July 31, 1836, in the late court of chancery, wherein John McGeer, Thomas McGeer, Peter McGeer, an infant, and Mary A. McGeer, an infant, were complaints, and Gouverneur Kemble, William Kemble, Richard F. Kemble, Mary F. Kemble, and Gertrude Kemble Paulding, (the wife of James K. Paulding,) the five children and devisees of said Peter Kemble, were defendants; (2) a notice of the pendency of the action filed the same day pursuant to 2 Rev. St. p. 174, § 43; (3) the joint and several answer of the defendants, verified January 28, 1837; (4) depositions taken in the suit in November and December, 1837, before a master; (5) an order entered April 26, 1838, closing the proofs; (6) an order entered May 25, 1844, substituting Charles O'Cannor as solicitor for the complaints.

It is alleged in the bill that August 13, 1819, Peter Kemble and Arthur McGeer (the father of the complaints) mutually executed an executory contract by which Kemble agreed to sell, and McGeer to purchase, the lots for $1,200, and that September 18, 1819, the vendee paid $100, and November 20, 1819, $100, on the contract, entered into possession, and in 1819 and in 1820 expended $2,000 in erecting a dwelling, and making other improvements; that to complete the dwelling McGeer borrowed $300 of Kemble upon an oral agreement that Kemble should convey the lots to McGeer, and receive from him a mortgage on them as security for the loan, and the remainder of the purchase price; and that to secure Kemble until the deed and mortgage should be exchanged McGeer delivered the contract for the lots to Kemble, who failed to convey them, and never returned the contract. It is further alleged that McGeer continued in possession, paying interest on the contract, until May 25, 1825, when he died interestate, leaving the complaints, his heirs and only heirs at law, then infants of tender years; and that shortly thereafter the defendants took, and have ever since retained, possession of the lots. The defendants in the suit in chancery admitted in their answer the execution and delivery of a written contract of sale, and the payment of $200 thereon, but averred that the contract was to be performed within two years. They admitted that McGeer took possession, built a house, and made improvements, but averred that the improvements did not cost $2,000. It was admitted in the answer that Kemble loaned McGeer money to complete his dwelling, but it was denied that Kemble received the contract as security until a deed and mortgage could be exchanged between the parties; and it was averred that November 7, 1821, McGeer and Kemble had a settlement, and there was found due on the contract, for money loaned and interest, $1,700, which McGeer, by his bond, covenanted to pay in one year, with interest, but never paid this sum, or any part of it. In short, several perfect defendants to the suit are alleged in the answer.

The referee in the case at bar found that no proceedings were taken in this equity suit between April 26, 1838, (when the proofs were declared closed,) and May 25, 1844, (when Charles O'Connor was substituted as solicitor for the complainants,) and that none have been taken since May 25, 1844. He found that all of the defendants in the equity suit, except Richard F. Kemble and Mary Kemble Parrott, died prior to November 6, 1881. He also found that about 20 years ago James N. Paulding, then the owner of the lots, made an unsuccessful effort to find the complainants, and that it does not appear what has become of them. The plaintiff called as a witness James N. Paulding, who testified that about 20 years before the trial of this action he sold the lots by auction, but the purchaser found the papers in the chancery suit on file, and refused to take the title. Upon cross-examination he testified: ‘That attempt was twenty years before this sale, more or less. I should think quite that. I have not the data to give the exact date, but I should think it must be twenty years ago. When he, the purchaser at the auction sale, came to search the title, he made this objection. I did not push it. I was astonished. This is the first thing I knew about anything being the matter with the title. I let it go. I, at the time, tried to find these people,-the McGeers. I employed the two men that I thought would be most likely to find out about these people. One was an agent I had then for the property. He had been agent for a long while, and knew all about it. The other was a merchant, who had lived there for some time, and had known these parties. They did their best to find out about them, and reported to me that they could not be found or heard of; had not been heard of for a great many years. The last that had been heard of them was that the man had been a sort of river pirate, and the woman was a drunkard, and had been carried off to the poorhouse or asylum, or something or other, and had disappeared, and everybody came to the conclusion that they were dead. That was the general opinion.’

Geo. W. Wickersham, for appellant.

W. H. Newshafer, for respondent.

FOLLETT, C. J., ( after stating the facts as above.)

A pending action brought to establish title to or a lien upon land does not of itself, nor does a duly recorded notice of its pendency, make the title defective, or create a lien on the land. Bank v. Culver, 30 N. Y. 313;Wilsey v. Dennis, 44 Barb. 354; Osbaldeston v. Askew, 1 Russ. 160; Bull v. Hutchens, 32 Beav. 615; 1 Dart, Vend. (6th Ed.) 564; 1 Sugd. Vend. (7th. Amer. Ed.) 592. In Bull v. Hutchens, Sir JOHN ROMILLY, the learned master of the rolls, discussing this question, said: ‘It [the registered notice] was notice of the existence of a suit in chancery, and required all persons dealing with the property to look at the proceedings to see whether it did affect the property or not. Here the lis pendens was no incumbrance if Pratt had no right against the property, for it depended on the validity of his claim; for, if his claim were idle, it could not create any incumbrance on the property. A man might file a bill claiming property, alleging that 60 years ago his ancestor was seised in fee, and that although he had sold the property, yet he had no right to do so. The plaintiff might register this as a lis pendens, but could anybody say that this was an incumbrance on the property, or a reason why a purchaser should not complete his purchase? All that the registration of a lis pendens does is to require persons to look into the claims of the plaintiff who registers it.’ The record before this court is barren of evidence, except such as is contained in the papers filed in the suit in chancery, tending to show that the complaints in that suit ever had an interest in or lien upon the lots. Nevertheless this case will be decided upon the assumptions (1) that all of the allegations in the bill were true at its date; (2) that the facts there alleged were found by the referee in this action upon competent and sufficient evidence; and (3) that those facts were sufficient to have entitled the complainants, in 1836, when their bill was filed, to a judgment requiring Mary Kemble, then the owner of the legal estate, to receive the remainder of the purchase price from the complainants, and convey to them the lot. Were it material, the defendant might well complain of these assumptions, for while the admissions made by Mary Kemble in her answer to the bill in chancery, when she was the owner and in possession of the lots, are evidence against the defendant, the unadmitted allegations of the complainants in their bill, on which the assumptions are based, are not evidence against him, and, besiders, the assumed facts were not found by the referee. Resting upon these assumptions, could the complainants, if living, or, if dead, their successors in interest, in March, 1885, have compelled the defendant in this action to accept of the remainder of the purchase price, and convey the lots? If the answer to this question be doubtful in a legal sense, by reason of resting on a disputed state of facts, or on unascertained facts, the plaintiff was not bound to take the title. Whether, in actions brought to enforce the...