Mygatt v. Coe

• Decision Date: 22 January 1891
• Citation: 124 N.Y. 212,26 N.E. 611
• Parties: MYGATT et al. v. COE.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 212

26 N.E. 611

MYGATT et al.

v.COE.

Court of Appeals of New York, Second Division.

Jan. 22, 1891.

Appeal from a judgment of the general term of the first judicial department affirming a judgment entered on a decision of the special term. On the 15th day of February, 1856, Ebenezer L. Roberts acquired through Charles Leech, a referee, an unincumbered estate in fee-simple in the premises described in the complaint, and, to secure the payment of $5,500 of the purchase price, executed and delivered on that day a mortgage on the premises to Leech, as referee, which was duly recorded on the next day, and became the first lien. May 15, 1856, Ebenezer L. Roberts and his wife conveyed the premises in fee-simple, subject to said mortgage, to William Tasker, who, on the same day, executed and delivered a mortgage on said premises to secure the payment of $1,800 to Ebenezer L. Roberts, which was duly recorded on the next day, and became the second lien. October 1, 1856, Tasker conveyed the premises in fee-simple to Ephraim H. Howell, by a deed dated that day, which recited a consideration of $12,000, that it was subject to the first mortgage, but made no reference to the second mortgage, and contained covenants of seisin against incumbrances of warranty and for further assurance. This deed was duly recorded December 4, 1856. September 18, 1857, Ebenezer L. Roberts began an action against William Tasker, the mortgagor, Ephraim H. Howell, (then the owner of the fee,) and Cecilia A. Howell, his wife, to foreclose his said mortgage. The summons was duly and personally served on William Tasker and Cecilia A. Howell, but before it was served on Ephraim H. Howell, and on the 19th of October, 1857, he disappeared, and for some months it was believed that he had left the state. In November, 1857, the summons was ordered served upon him by publication, and the statutory requirements were, in form, complied with. Howell had not left the state, but committed suicide (as was discovered in March, 1858) on the 19th of October, 1857. He died intestate, seised in fee of said premises, and left five infant children, who were his heirs at law, and a widow. February 17, 1858, a judgment of foreclosure and sale was entered in this action, and March 13, 1858, the lands were sold and assumed to be conveyed under said judgment to Ebenezer L. Roberts. These proceedings were had in ignorance of the fact that Howell was dead. Roberts recorded his deed, took possession under it, and July 15, 1858, he paid off the first mortgage for $5,500, and assumed to convey the premises to Almira S. Coe by a deed which she duly recorded, and she immediately entered into possession of the premises thereunder, and continued therein until April 12, 1867, when, in consideration of $18,500, she assumed to convey the premises to Nancy Fisher, by a warranty deed, in which George S. Coe, her husband, joined. By this deed Almira S. Coe and George S. Coe jointly covenanted (1) that Almira S. Coe was seised of the premises; (2) that she had good right to convey them; (3) that the premises were unincumbered; (4) that the grantee should quietly enjoy the premises; (5) that they would give further assurance; (6) that they, their heirs and representatives, would forever warrant and defend the grantee, her heirs and assigns, against all persons lawfully claiming or to claim the same. The grantee recorded her deed, and entered into possession thereunder, and December 21, 1869, assumed to mortgage the premises to the plaintiffs to secure the payment of $15,000 which mortgage was duly recorded. On the 19th of April, 1871, Nancy Fisher assumed to convey the premises in fee to one Henry W. Fuller, who entered into possession under his deed, and remained therein until November 11, 1874, when he assumed to convey said premises in fee to Clara B. Leavitt, who entered into possession under her deed. In 1878 the heirs at law of Ephraim H. Howell recovered the land by an action in ejectment, and ousted Clara B. Leavitt. Thereafter the plaintiffs began an action against Nancy Fisher, Charles J. Fisher, her husband, Henry W. Fuller, Clara B. Leavitt, and James M. Leavitt, her husband, for the foreclosure of their said mortgage for $15,000, which resulted in a judgment of foreclosure June 5, 1879, and, pursuant to this judgment, the premises were assumed to be sold and conveyed August 14, 1879, to the plaintiffs for $2,000, that being the highest sum bidden at the sale. Dunning v. Leavitt, 85 N. Y. 30. In November, 1879, the judgment of ejectment was opened, and the plaintiffs in this action were allowed to come in and defend, and on the 27th of January, 1883, a judgment was entered in the ejectment action against these plaintiffs, which was affirmed by the court of appeals, April 29, 1884, (Howell v. Leavitt, 95 N. Y. 617,) and May 10, 1884, the judgment of the court of appeals was made the final judgment of the court of original jurisdiction. The plaintiffs never, at any time, had possession of the premises. January 3, 1884, Almira S. Coe died, and in November of that year this action was begun by Sarah M. Mygatt and Angeline E. Darling, surviving trustees, against George S. Coe, to recover the amount of the mortgage given by Nancy Fisher to the plaintiffs, with interest thereon from May 1, 1878, on the ground that the covenants of seisin for quiet enjoyment and general warranty were broken. The case was tried before the court without a jury, which ordered a judgment for the plaintiffs for the amount due on the mortgage for principal and interest.

@BRADLEY, HAIGHT, and BROWN, JJ., dissenting.

Sidney S. Harris, for plaintiffs, respondents.

W. S. Cogswell, for defendant, appellant.

FOLLETT, C. J.

Mrs. Fisher, had she been evicted and brought her action in the lifetime of Mrs. Coe, could have recovered her damages of this defendant, because he had covenanted directly with her, under his seal, that he would indemnify her for the damages sustained by an eviction. Though Mrs. Coe died before this action was begun, the question of the liability of a surviving joint contractor (Risley v. Brown, 67 N. Y. 160;Randall v. Sackett, 77 N. Y. 480) is not raised by the record, and it was conceded on the argument in this court that it does not appear whether the defendant received the whole or any part of the consideration of the deed. Mrs. Coe having no title when she conveyed to Mrs. Fisher, the covenants of seisin and of right to convey were broken by the delivery of her deed, and became choses in action, which were not transferred to the subsequent grantees, or, in other words, these covenants did not run with the land. Greenby v. Wilcocks, 2 Johns. 1;Abbott v. Allen, 14 Johns. 248;McCarty v. Leggett, 3 Hill, 134;Mott v. Palmer, 1 N. Y. 564; Chapman v. Holmes, 10 N. J. Law, 20; 2 Dart, Vend. (6th Ed.) 881; Rawle, Cov. (5th Ed.) §§ 69, 202. The plaintiffs must recover, if at all, for a breach of the covenants of warranty and of quiet enjoyment. The important question in this case is whether covenants of warranty and of quiet enjoyment, entered into jointly by the owner of the fee and a stranger to the title, run with the land as against the stranger, and are available in favor of a subsequent grantee, who holds no assignment of the cause of action arising from the breach. Had the plaintiffs been able to allege and prove a deed in which the defendant and his wife had assumed to grant, and had they delivered possession of the premises described, and had covenanted that they were lawfully seised, had good right to convey, and that they would forever warrant and defend, the plaintiffs might, by the aid of the doctrine of estoppel, have prevented this defendant from proving, and the court from finding, that he never had any title, estate, or interest in the land. But the parties agreed and the court found that Roberts assumed to convey the premises to Almira S. Coe. The plaintiffs alleged, which the defendant did not deny, and proved that the defendant and his wife covenanted that she was lawfully seised of an absolute and indefeasible estate of inheritance in fee-simple in the premises, and had good right and lawful authority to convey them. Our attention is called to the finding that the defendant and his wife joined in a deed purporting to convey the land in fee-simple to Nancy Fisher. This finding is not inconsistent with the findings and facts admitted, already referred to. It is not therein found that this defendant assumed to convey any estate in the premises, nor is it found that he covenanted that he or they were seised of and had a right to convey and premises; nor can we infer such a fact in the face of the allegation in the complaint that Mrs. Coe assumed to have the entire title to the premises, and, in legal effect, that the defendant was a stranger to it. Facts admitted by the pleadings have the same force as facts found. If the facts found and admitted are inconsistent, the appellant is entitled to rely upon those most favorable to him. It is unfortunate that the deed which fixes the rights of these parties is not contained in the case; but if a new trial is had this defect will be remedied, and the exact connection of this defendant with the conveyance will be made clear. There are three manners of privities, viz.: (1) Privity in case of estate only; (2) privity in respect to contract only; (3) privity in respect to estate and contract together. 2 Subd. Vend. *714; 4 Cruise, Dig. *376; 2 Greenl. Cruise, 458. The term ‘privity in estate’ denotes mutual or successive relationship to the same rights of property. Stacy v. Thrasher, 6 How. 44-59; Greenl. Ev. §§ 189, 523; Bigelow, Estop. (5th Ed.) 347. ‘There is a certain privity between the grantor and grantee of the land. It is not the privity arising upon tenure, for there is no fiction of fealty annexed. It is, however, the same sort of privity which enables the grantee of a purchaser to maintain an action...