Phelan v. Brady

• Decision Date: 21 March 1890
• Parties: PHELAN v. BRADY et al.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 587

23 N.E. 1109

PHELAN

v.BRADY et al.¹

Court of Appeals of New York.

March 21, 1890.

Appeal from supreme court, general term, first department.

Action by James J. Phelan against Margaret Brady, who alone appeared, and John E. Murphy and wife, to foreclose a mortgage. Judgment was entered at special term dismissing plaintiff's complaint on the merits, which judgment was affirmed by the general term; and plaintiff appeals.

N. B. Hoxie and Wm. A. Haggerty, for appellant.

Wyatt & Trimble, for respondent.

O'BRIEN, J.

On the 23d day of July, 1886, the plaintiff loaned to the defendant John E. Murphy the sum of $2,000, and took from him his bond, whereby he promised to pay the same, with interest semi-annually, in two years thereafter. On the same day, and as collateral security for the payment of the bond, Murphy and his wife executed, acknowledged, and delivered to the plaintiff a mortgage upon certain real estate in the city of New York. The premises thus mortgaged consisted of a tenement building or block containing 43 rooms or appartments, then occupied by 20 different occupants or families as tenants from month to month, except that three of these apartments were occupied by the defendant Margaret Brady and her husband, who kept a liquor store in part of the building, and they occupied two living rooms in the rear of the store; the wife claiming to be the owner of the premises, and collecting rents from the other tenants. The plaintiff, at the time he made the loan, had no actual notice or knowledge of any title to the premises in Mrs. Brady, or any claim on her part to be the owner. When the first installment of interest became due upon the mortgage, default was made; and the plaintiff brought this action to foreclose under a provision in the mortgage making the whole sum due upon default in the payment of the interest when due. Margaret Brady, being in possession, was made a party to the action; and she answered, setting up the defense that prior to the execution and delivery of the plaintiff's mortgage, and on or about the 5th of May, 1886, she became the absolute owner, in fee-simple, of the premises described in the complaint and in the mortgage, and of the whole thereof, and that upon becoming such owner she took possession of the same, claiming to be the owner, and actually owning the same, and that she has ever since continued in actual, open, and notorious occupation and possession of the premises as such owner, and has ever since and still owns the same in fee-simple. The trial court found that in March, 1886, Margaret Brady employed one Michael J. Murphy, an attorney, to examine the title to the premises in question, and purchase the same for her; and before May 7, 1886, she gave said Murphy, as her attorney, the sum of $6,700 to be used as part of the purchase money; that Murphy procured a contract for the sale of the premises to be made between Mary S. Trimble, who then owned the same, and his son John E. Murphy, the defendant, in which contract the said John E. Murphy appeared to be the purchaser of the premises; that upon the execution of this contract, about March 19, 1886, Michael J. Murphy paid to Mrs. Trimble part of the sum of $6,700, which he had received for that purpose from Mrs. Brady, and the rest of that sum was paid to her on the 7th of May, 1886; that the balance of the purchase price, namely, $16,000, was secured to be paid to Mrs. Trimble by a purchase-money mortgage; that, on the same day the purchase price was thus paid, Mrs. Brady's lawyer took from Mrs. Trimble a deed of the premises...