Roarty v. McDermott

• Decision Date: 11 June 1895
• Citation: 41 N.E. 30,146 N.Y. 296
• Parties: ROARTY v. McDERMOTT et al.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 296

41 N.E. 30

ROARTY

v.McDERMOTT et al.

Court of Appeals of New York.

June 11, 1895.

Appeal from supreme court, general term, First department.

Action by James Roarty against Edward C. McDermott and others for partition. There was a judgment for partition, and a sale of the premises. From an order of the general term (32 N. Y. Supp. 853), reversing an order requiring the purchaser, Frank J. Walgering, to pay the balance of the price, plaintiff appeals. Reversed.

William H. Hamilton, for appellant.

Clemens J. Kracht, for respondent.

O'BRIEN, J.

This was an action to partition certain real property in the city of New York. The final judgment was executed by a sale of the property, under the direction of a referee, and Frank J. Walgering became the purchaser of a house and lot, No. 441 West Forty-Fifth street, for $15,800, he being the highest bidder at the sale. Subsequently he refused to complete the purchase on the ground that the title tendered was not a marketable one. His objections to the title were overruled by the court at special term, and he was required to pay the balance of the purchase money upon tender of the referee's deed. This order, however, was reversed by the general term. The plaintiff having appealed to this court, the question to be determined is whether, upon the facts appearing, there is such a reasonable doubt concerning the marketable character of the title tendered as to warrant the court below in discharging the purchaser from his contract obligations. It is conceded that Thomas McConnell, who died August 24, 1871, leaving a will, was seised of the premises in fee. His widow and executrix mortgaged the house and lot to Charles Devlin on the 21st of June, 1873. This mortgage was foreclosed by decree entered in the supreme court May 24, 1877, and a sale had thereunder, which is the basis of the title which was tendered. If the sale upon this judgment bound the three infant children of Thomas McConnell, then, unquestionably, the title tendered is good, and the purchaser is bound to perform his contract.

In order to appreciate the question, it is necessary to get a clear view of the facts connected with the execution and foreclosure of this mortgage. By his will McConnell gave to his wife, after paying debts, all his real and personal estate during her natural life. This provision was, however, subject to an absolute gift to his eldest son of one-fourth of the estate, after deducting what the widow would be entitled to by way of dower, this one-fourth to be paid to him in cash on arriving at the age of 21 years. The remainder of the estate was given to the three younger children, after the death of the mother, and in such proportions as she might by will direct. His widow, Ann McConnell, was appointed executrix, with power to sell or mortgage any part of the estate ‘for the purpose of carrying out the provisions of my will, or whenever, in her judgment, it may be for the best interest of my estate, applying the proceeds thereof to the benefit of my said estate.’ The will was proved and letters testamentary issued to the widow September 14, 1871. The real estate left under this will was all incumbered, and in danger of being wasted or sacrificed, unless means could be provided to pay obligations due or about to become due. On the 13th of June, 1872, the widow, acting under the power of sale in the will, conveyed, as executrix, to Charles Devlin, for the consideration of $9,000, a house and lot on Twenty-Ninth street. She received from him $6,000 in cash, and the balance of $3,000 in a bond and mortgage executed to her as executrix. The $6,000 thus received was applied by her to paying off incumbrances on the estate, and thus far there cannot be the slightest question as to her power or as to the regularity of her proceedings. About a year afterwards the eldest son became of age, and he having demanded the share of the estate left him by the will, it became necessary to raise more money. The widow arranged with Devlin to take back the Twenty-Ninth street house, and to cancel his bond and mortgage, in order to enable her to give a first mortgage thereon for $5,000, to raise that sum to pay to the son in discharge of his interest in the estate. Devlin, who seems to have been a friend of the family, assented to this, and deeded the house to the widow, and had his bond and mortgage canceled, and she subsequently raised the money on it by first mortgage to pay off the son's claim, and took from him a release of all his interest in the estate. But, though Devlin had reconveyed the title, he had not yet been paid the $6,000 which he had advanced to the widow a year before, and which she had used for the benefit of the estate. That was not paid to him, but he elected to treat it as a loan to the executrix, and to secure its payment she gave to him a bond for that amount, secured by a...