Jenks v. Quinn

• Decision Date: 28 February 1893
• Citation: Jenks v. Quinn, 137 N. Y. 223, 33 N. E. 376 (N.Y. 1893)
• Court: New York Court of Appeals Court of Appeals
• Parties: FRANK B. JENKS, Respondent, v. THOMAS QUINN, Appellant.

137 N.Y. 223

33 N.E. 376

JENKS

v.QUINN.

Court of Appeals of New York.

Feb. 28, 1893.

Appeal from supreme court, general term, fourth department.

Action by Frank B. Jenks against Thomas Quinn on warranty of title against a certain mortgage.From a judgment of the general term (16 N. Y. Supp. 240) affirming a judgment for plaintiff, defendant appeals.Affirmed.

Gray and Maynard, JJ., dissenting.

Smith & Dickinson, (A. P. Smith, of counsel,) for appellant.

W. C. Crombie, for respondent.

O'BRIEN, J.

The judgment from which this appeal was taken was recovered by the plaintiff as his damages for breach of a covenant of quiet enjoyment in a warranty deed.On the 2d day of October, 1871, John and Daniel Curtin were the owners, as tenants in common, of a farm in Cortland county, described as containing 137 acres and 77 1/2 rods of land.This land was incumbered by a mortgage of $496, given by a former owner June 20, 1837, and which the Curtins had, upon the purchase of the land, assumed and agreed to pay.On that day they severed the joint ownership, and divided the land.John received from Daniel a deed of that portion of the land which was situated west of a certain road, containing 56 1/2 acres.In this deed Daniel covenanted as follows: ‘And the party of the first part herein covenants and agrees to save the party of the second part harmless from and pay off and liquidate a certain loan mortgage of four hundred and ninety-six dollars upon the premises herein described.’At the same date John conveyed to Daniel the remainder of the parcel described as containing 79 acres.The effect of these conveyances was to make Daniel not only personally bound for the payment of the mortgage, but to charge his part of the land primarily as the security.Both deeds were recorded on December 11, 1871.On the same day there was recorded a deed from John Curtin to the defendant, Thomas Quinn, which was dated on the 8th of December.The defendant, by the conveyance, became the owner of the 56 1/2 acres that had been assigned to John, and, as between him and the owner of the other parcel, which had been conveyed to Daniel, the latter was primarily liable for the payment of the mortgage.On the 8th of March, 1873, the defendant, by deed, containing the usual covenant of quiet enjoyment and warranty, conveyed his parcel to William T. Jenks.The consideration expressed in this deed is $2,200, and the grantee was to assume and pay a junior mortgage of about $1,400, which had been executed by the Curtins when they owned the whole parcel together.On the 4th day of February, 1881, William T. Jenks and wife conveyed the land to the plaintiff, who is their son, and the grantee went into possession.This deed does not appear in the case, and there is no finding as to its form, or the particular consideration paid, if any.In the meantime, and at the date of the transactions which will be presently referred to, the title to the other parcel of 79 acres, that had been conveyed to Danel Curtin, became, through mesne conveyances, vested in one William D. Hunt.On November 1, 1887, the loan commissioners began a statutory foreclosure of their mortgage, and on the 7th of February, 1888, the 56 1/2 acres conveyed to the plaintiff by his father were sold and conveyed to the purchaser, by the perfection of the foreclosure proceedings, for about $600.The plaintiff, upon the demand of the purchaser, surrendered possession to him, and the purchaser then leased the premises to the plaintiff's mother, and the wife of his immediate grantor, and in this way an eviction is made out.Both the plaintiff and his father were present at the sale under the mortgage foreclosure, and neither of them made any objection to the sale, or gave the commissioners any information as to the facts above stated, or that the land of Hunt was primarily charged with the payment of the mortgage.The commissioners evidently wanted to proceed fairly, and had no purpose or motive to sell the plaintiff's land improperly; but it seems that, in consequence of some mistake in the search procured from the clerk's office, they supposed that the 56 1/2 acres, instead of the 79acre parcel, was primarily charged with the payment of the mortgage, whereas the reverse was the true state of the case.It is found as a fact that the plaintiff's father and grantor, who was present with him at the sale, had knowledge of all the facts; but it does not appear that the plaintiff himself had any knowledge, except such as he is legally chargeable with from the record of the deed, which contained the covenant of Daniel Curtin.The trial court has found that the plaintiff's land was sold under the mortgage at the request of William D. Hunt, the then owner of the Daniel Curtin parcel, and in order to save his own farm from sale on the foreclosure, which was more than sufficient in value to satisfy the mortgage.The defendant not only had the usual statutory notice of the sale, but it is found that prior to the sale the plaintiff's grantor, to whom the defendant's covenant directly ran, notified him personally of the foreclosure and proposed sale, and requested him to be present at the sale, and protect the title of this land, and that the defendant promised to do so, but he was not present at the sale, the evidence tending to show that it was by reason of sickness.This constitutes the breach of the covenant of defendant's...