Sweet v. Henry

• Decision Date: 02 June 1903
• Citation: 67 N.E. 574,175 N.Y. 268
• Parties: SWEET v. HENRY et al.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 268

67 N.E. 574

SWEET

v.HENRY et al.

Court of Appeals of New York.

June 2, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Warner M. Sweet against Augustus W. Henry and others. From an order of the Appellate Division (72 N. Y. Supp. 868), reversing a judgment for defendants, entered on report of referee, defendants appeal. Reversed.

The referee found in substance as follows: In July, 1884, one Van Dresser was the owner and in possession of certain hotel property in the town of Hume, in the county of Allegany, and on that day he leased to Baker and Sweet, for a period of 15 years, a vacant strip of land 40 feet wide and 120 feet long; the lease providing: ‘Said second parties agree that they will during said term maintain on said premises a skating rink or public hall, for which purpose alone these premises are leased, which building and fixtures thereto belonging second parties may remove at the end of their term.’ This lease was never recorded. Thereafter Baker and Sweet erected the building contemplated, placing it upon stone abutments, and not a continuous wall. In May, 1885, Van Dresser conveyed to one Crandall. This deed contained the following exception: ‘Also excepting and reserving the use of the land on which a certain skating rink now stands for the use of said rink for the term of fifteen years from the year 1884.’ This deed was duly recorded. At this time Crandall gave to Van Dresser a mortgage to secure the payment of $2,200 of the unpaid purchase price, and inserted therein the above-quoted exception. This mortgage was duly recorded. In September, 1885, Van Dresser assigned this mortgage to one Relief Sweet. In March, 1886, this mortgage was assigned to John Dunn, who died owning it. In May, 1886, Crandall conveyed the property to the defendant Augustus W. Henry; the deed containing the same exception as his deed from Van Dresser. This deed also contained the following: ‘This conveyance is subject to a mortgage made by C. Sherman Crandall to Charles D. Van Dresser on the first day of May, 1885, on which there is now due $1,974.50, and which mortgage is now held by John Dunn, of Genesee Falls, N. Y.; that when said uses relating to the skating rink, lock-up, and watering trough shall have lapsed by expiration of time, the fee absolute of the lands upon which the same stand shall become vested and pass by this conveyance, as though such had never been created; the said premises being the same real estate referred to in said deed of Van Dresser to C. Sherman Crandall, except as shall relate differently to said Meaches' land.’ Following the covenant of warranty in this deed were these words: ‘Except as against the exception and reservation, and against the mortgage above mentioned.’

It appears that Augustus W. Henry, one of the defendants, entered into the possession of the hotel property at the time he took the above conveyance, and occupied the same continuously as a hotel, until after the foreclosure sale under the Dunn mortgage in March, 1898, shortly after which he vacated the hotel, and with his wife, the defendant Hettie Henry, moved into and occupied a portion of the skating rink building as a dwelling house, and so continued to the time of the trial of this action. About two years after Augustus W. Henry took title to the hotel property, and on the 6th day of June, 1888, he received from Baker, one of the lessees of said land on which stood the skating rink, an assignment of the interest of Baker in the rink and the personal property contained therein; and in the same instrument there was also a transfer of Baker's interest in the lease of the land on which the rink stood. On the 8th of June, 1888, Augustus W. Henry received from Sweet a like transfer of all his interest; Sweet retaining title to the property sold until the same should be paid for according to the terms of the agreement. Such transfer was filed in September, 1888, in the clerk's office of the town of Hume. About a year after the defendant Augustus W. Henry took these assignments from Baker and Sweet, and in the summer of 1889, he refinished the inside of the building by ceiling the same overhead and upon the sides, placing therein a stage and balconies, and converted the same into an opera house, place, or hall for holding theatricals, public meetings, and political gatherings. Defendant Henry expended upon said improvements upward of $1,000. Thereafter the building was used for public purposes, as was designed in its erection.

The referee finds that the maintenance of this skating rink building was, owing to its close proximity to the hotel, a great advantage to the defendant Henry, by increasing its patronage. On the 25th day of June, 1897, about two years before the commencement of this action, Augustus W. Henry, for an express consideration of $500, executed an instrument under seal, which purported to convey and transfer to his mother, Rosetta Henry, her executors, administrators, and assigns, among other personal property, ‘one opera house, being the opera house which I purchased of Nelson B. Baker and R. Duane Sweet, and all the personal property there now is in said opera house,’ etc. This bill of sale was delivered to Rosetta, with the keys of the building. On the 12th day of June, 1899, Van Dresser executed and delivered to Hettie Henry, one of the defendants, an instrument in form a quitclaim deed, which purported to convey to her all the unexpired term of 15 years which was excepted and reserved in the deed of Van Dresser to C. Sherman Crandall, dated May 1, 1885. The referee finds the commencement of this action and the arrangement by which the plaintiff was permitted to remove the building on execution of a bond for damages. In June, 1897, Nellie Dunn, executrix of John Dunn, foreclosed the mortgage assigned to him in 1886; judgment being entered in January, 1898. The judgment directed the sale of the property to satisfy the mortgage debt, and contained the same exception as to the lands on which the skating rink stood as was contained in the mortgage. The referee, in March, 1898, sold the premises pursuant to a notice containing, with the description of the property, the same exception and reservation of the lands on which the skating rink stood as was contained in the mortgage and judgment. This notice was read to be bidders at the sale, and Nellie Dunn bid in the property and received the referee's deed. On April 28, 1898, Nellie Dunn conveyed by a quitclaim deed to one Howden, which contained the same exception and reservation as to the use of the lands on which stood the skating rink as contained in the mortgage. On April 29, 1898, the plaintiff, Warner M. Sweet, appears upon the scene. On the last-mentioned day Howden entered into a contract with Sweet, agreeing to convey to him the Ingham House hotel property, including all the property deeded by Nellie Dunn to him. In April, 1900, and after this action was commenced, Howden conveyed by quitclaim deed the premises to this plaintiff, omitting in the description in the said deed the exception and reservation as to the use of the lands on which stood the skating rink, which had theretofore been contained in all the conveyances in the chain of title to the plaintiff. This deed was executed in pursuance of the agreement herein before referred to, made between Howden and the plaintiff on April 28, 1898. The last finding of fact reads as follows: ‘Thirteenth. That it was not the intention of said Augustus W. Henry, when he purchased the said skating rink, or at any time thereafter, that the title to the said building should merge in the fee of the land, or that the same should come under and be subjected to the lien of the said Dunn mortgage; and it was for his interest and more beneficial to him that such merger should not occur.’

The referee then decided, as conclusions of law, as follows: ‘First. That, when the defendant Henry took to himself a conveyance of the term for years from Baker and Sweet, such term was merged and extinguished in the fee then vesting in him, but that such building, as between the original lessor and lessees, was personal property, and was not converted into real estate by such merger, and that the title to such building was not merged or sunk in the fee of the land by the acquisition of the term of the lease by the said Henry. Second. That by the terms of the judgment of foreclosure, and the exceptions and reservations in the deeds constituting the plaintiff's clain of title, which expressly excepts from their operation the use of the land on which the skating rink stood, the plaintiff is estopped from asserting here the fact of merger, or to claim that such building became subjected to the lien of the said mortgage, or that title to the building passed to him under the mortgage sale and subsequent conveyances.’J. H. Waring, E. E. Harding, and G. W. Harding, for appellants.

F. A. Robbins and H. H. Relyea, for respondent.

BARTLETT, J. (after stating the facts).

The plaintiff, as the owner of certain premises, brought this action to restrain by injunction the removal of a building therefrom. A temporary injunction was granted, and afterwards modified by consent of parties, so as to permit the defendants to remove the building on giving a bond for damages. The single point is presented whether the plaintiff was chargeable with constructive notice of the alleged right of the defendants to remove the...