Kingsland v. Fuller

• Citation: 52 N.E. 562,157 N.Y. 507
• Parties: KINGSLAND v. FULLER et al.
• Decision Date: 10 January 1899
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 507

52 N.E. 562

KINGSLAND

v.FULLER et al.

Court of Appeals of New York.

Jan. 10, 1899.

Appeal from supreme court, appellate division, First department.

Action by Cornelius F. Kingsland, trustee of the will of A. C. Kingsland, deceased, against Edgar C. Fuller and others, to foreclose a mortgage. From an order denying a motion to compel Albert J. G. Riemann to complete his purchase at foreclosure sale, plaintiff appealed to the supreme court, which affirmed the order (53 N. Y. Supp. 624), and he again appeals. Reversed.

Bartlett and Haight, JJ., dissenting.

J. Frederic Kernochan and Henry F. Miller, for appellant.

Henry Hoyt, for respondents.

O'BRIEN, J.

The plaintiff made an application to the court in this action to compel the purchaser of premises sold at public sale under a judgment of foreclosure to accept the referee's deed, and complete his purchase. No objection is made to the foreclosure proceedings. They were in all respects regular, and the judgment valid. In pursuance of the judgment, the premises were sold by the referee at public auction, after due publication of the notice of sale. The purchaser admits that, some days before the sale, he read the notice; and it appears, without contradiction in the moving papers, that the notice and terms of sale were distinctly read at the sale. The purchaser, who now refuses to accept the deed, signed the usual memorandum stating that he had purchased the premises described in the annexed printed ‘advertisement of sale,’ and agreed to comply with the terms and conditions, and to complete the purchase on the 16th of March, 1898. The time was extended at his request until the 14th of April following. On that day the referee tendered to him a deed duly executed, in pursuance of the judgment, and in conformity with the terms of sale, and requested payment of the balance of the purchase money, with interest. The purchaser declined to receive the deed or complete the purchase, on the ground that there was a material clerical error in the description of the premises. The nature of that error will appear hereafter. No other excuse was then made by the purchaser for refusing to comply with the terms of the sale. Subsequently, the attorneys for the plaintiffs in the judgment instituted these proceedings, to compel the purchaser to accept the deed and to complete his purchase. The only answer to this application that the purchaser makes is that, by a written agreement of record between a prior owner of the premises and the owner of the adjoining house and lot, a charge or burden was imposed upon the premises, which is in the nature of an incumbrance, and, in so far as that instrument affects the title to the property, the referee's deed will not convey an absolute title in fee. It appears that the premises are correctly described by metes and bounds in the notice of sale. The sale was made subject to the agreement made between the prior owner and the other party to the instrument, giving the date thereof, and the time and place of record in the notice of sale. The question therefore is not whether this instrument imposes a charge or burden upon the premises, but whether the purchaser was tendered a deed which conveyed to him the title which he purchased.

When mortgaged premises are described in the notice of sale, and are actually sold subject to an outstanding incumbrance, which is referred to in the notice and at the sale, the purchaser is chargeable with knowledge of the contents thereof. He is supposed in law to have read the instrument, and to have made his did, and signed the conditions of sale with a view to its provisions; and he is also chargeable with knowledge of what was apparent and obvious upon the premises. Riggs v. Pursell, 66 N. Y. 193. The agreement or instrument which affects the title to the premises in question provided that the owner of the house and lot should have the right to insert, in the easterly wall of the adjoining house already built, the floor and roof timbers to the depth of four inches inward from the easterly face of said wall, and also to make such necessary additions to such wall for flue or fireplaces as should be necessary or convenient. In consideration of this privilege, the owner of the premises in question, his successors and assigns, became bound not to erect any building on their lands which should extend more than 45 feet in distance southwardly from the building line of Sixty-Fifth street, and that any back building or extension should be at least 8 feet...