Macauley v. Smith

• Decision Date: 03 May 1892
• Citation: 132 N.Y. 524,30 N.E. 997
• Parties: MACAULEY v. SMITH et al.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 524

30 N.E. 997

MACAULEY

v.SMITH et al.

Court of Appeals of New York, Second Division.

May 3, 1892.

Appeal from supreme court, general term, fifth department.

Action by Antoinette Macauley against Robert H. Smith, Calvin Tracy, William Howland, Emily Howland, and Lucilia Tracy, and the New York, Baptist Union for Ministerial Education, to have certain conveyances of real estate declared to be mortgages, and subjected to the lien of a certain judgment. Defendants obtained judgment, which was affirmed by the general term. Complainant appeals. Reversed.

John Van Voorhis, for appellant.

Rollin Tracy, for respondents.

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

The action was to have certain conveyances of real estate by warranty deeds declared to be mortgages, and to have the real estate adjudged to be subject to the lien of a certain judgment recovered by the plaintiff against the grantor in such deeds, and an execution issued thereon. The action in which the judgment was entered was for the recovery of money only, and was commenced in August, 1879, by this plaintiff against Lucilia Tracy by publication of a summons against the defendant therein as a nonresident, and an attachment was at the same time issued against her property, which was in form levied upon the real estate in question. Judgment by default was entered in that action in July, 1883, and an execution issued thereon to the sheriff of the county where the property was situated, which execution has since been held by the sheriff. On and prior to the 6th day of July, 1871, Lucilia Tracy was the owner and in possession of two parcels of real estate on Alexander street, in the city of Rochester, upon one of which parcels there were two mortgages of $5,000 and $2,000, respectively. On the 5th day of July, 1871, she entered into an agreement in writing with the defendants Robert H. Smith and Calvin Tracy, and one Slocum Howland, since deceased, (who is represented in this action by the defendants William and Emily Howland, as his executors,) whereby, in consideration of and for the purpose of securing a loan of $8,240, she agreed to execute and deliver to them a good and sufficient warranty deed of both parcels of land above mentioned, and the agreement proceeds as follows: ‘And the said Howland, Smith, and Tracy, in consideration of, and before the execution and delivery of, said deed, hereby agree to advance the said sum of $8,240 (in a manner specified) to the said Lucilia Tracy. It is also hereby agreed, by and between the parties hereto, that the said deed is to be and is a security for said loan for a term not exceeding one year from the date of said deed, which is to be hereafter executed; and that upon the repayment of said sum of $8,240, with interest, within or at the expiration of said one year, by the said Lucilia Tracy, her heirs, executors, administrators, or assigns, the said Howland, Smith, and Tracy, their and each of their heirs, executors, administrators, or assigns, are to reconvey said premises so conveyed to said Lucilia Tracy, her heirs, executors, administrators, and assigns, free from all incumbrances or liens thereon, except such as exist and are liens or incumbrances upon said premises at the time of the conveyance thereof as aforesaid by the said Lucilia Tracy.’‘And, in case the said sum of $8,240 shall not be repaid during or at the expiration of one year as aforesaid then it is understood and agreed that the said deed, so as aforesaid to be executed by the said Lucilia Tracy, is to become and be a deed absolute, and the said Howland, Smith, and Tracy, or their heirs or assigns, are to become and be the owners thereof in fee simple absolute.’ Accordingly, on the following day Miss Tracy executed and delivered to the other parties to the agreement deeds of the two parcels of land, containing the usual covenants of warranty, which were on the same day duly recorded in the clerk's office of Monroe county, in and by one of which deeds the grantees, as part consideration of the conveyance, assumed the payment of the two mortgages above mentioned, but did not covenant to pay them. The loan was not repaid, and in December, 1872, the grantor remained in possession of the premises for about two years after the date of the deeds, and then quit and surrendered possession of the premises to the grantees, who remained in possession thereof, by tenants or otherwise, until the 1st of January, 1875, when they sold and conveyed the same to the defendant the New York Baptist Union for Ministerial Education, which has ever since been in possession of the premises, claiming title thereto. The debts for which plaintiff obtained judgment against Lucilia Tracy were contracted prior to January 1, 1872. The agreement of July 5, 1871, was never recorded, and the defendant the Baptist Union had no notice thereof at the time of its purchase of the property. It is conceded on the part of the plaintiff that her judgment against the grantor in the deeds above mentioned is of no force or effect, for the purposes of this action, unless as a judgment in rem, by virtue of a levy of the attachment upon the property in question. Code Civil Proc. § 707.

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

The agreement which antedated the deeds by one day, and expressed their intent and purpose, should be read in connection with them. Thus read, the deeds are shown to have been given by Lucilia Tracy to Howland, Smith, and Tracy, ‘for the purpose of securing, and in consideration of, said loan of $8,240,’ made by the grantees to the grantor; and ‘that the said deed * * * is a security for said loan for a term not exceeding one year from the date of said deed, * * * and that upon the repayment of said sum of $8,240, with interest, within or at the expiration of one year, by the said Lucilia, * * * the said Howland, Smith, and Tracy are to reconvey said premises to...