Wardell v. Older

• Decision Date: 21 June 1979
• Citation: 70 A.D.2d 1008,418 N.Y.S.2d 196
• Parties: Raymond WARDELL et al., Respondents, v. Elliott J. OLDER, Jr. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 196

418 N.Y.S.2d 196

70 A.D.2d 1008

Raymond WARDELL et al., Respondents, v. Elliott J. OLDER, Jr. et al., Appellants.

Supreme Court, Appellate Division, Third Department.

June 21, 1979.

Joseph E. Rosch, Ballston Spa (John J. LaBoda, Jr., Ballston Spa, of counsel), for appellants.

Parisi, DeLorenzo, Gordon & Pasquariello, Schenectady (Charles R. Harding, Schenectady, of counsel), for respondents.

Before MAHONEY, P. J., and GREENBLOTT, MAIN, MIKOLL and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Saratoga County in favor of plaintiffs, entered March 22, 1978, upon a decision of the court at Trial Term, without a jury.

Plaintiffs ^* brought the within action pursuant to article 15 of the Real Property Actions and Proceedings Law to establish ownership in a 20-acre parcel of land conveyed to them by warranty deed in 1948 by Arthur L. Perry and Grace M. Perry, his wife. This deed, although delivered to the grantees, was not recorded until December 7, 1972. In 1963, Grace M. Perry (Arthur L. Perry having died) conveyed two parcels of land, one of which encompassed the parcel described in plaintiffs' deed, to the defendants. This deed was recorded on October 18, 1963.

The 20-acre parcel in dispute is rectangular in shape, bounded on the west by Sand Hill Road, on the south by North Creek Road, and is roughly bisected by the Kayaderosseras Creek. Plaintiffs' home is located on that portion north of the creek. The residence purchased by defendants was located on an adjacent parcel of land south of the creek.

In 1972, plaintiffs discovered that the defendants possessed a deed encompassing their property and that their own deed was unrecorded. They thereafter commenced the action which is the subject of this appeal.

The judgment should be affirmed. Although the trial court incorrectly found that the defendants were not purchasers within the meaning of the Recording Act because they did not know the exact property they were purchasing, the judgment is sustainable on other grounds set forth by the court in its decision.

The trial court properly found, based on the evidence presented, that the defendants had sufficient facts in their possession to be on inquiry notice of the plaintiffs' interest; that had an inquiry been made, that interest would have been discovered; and that thus, the defendants could not take advantage of the Recording Act (Fidelity & Deposit Co. of Maryland v. Queens County Trust Co., 226 N.Y. 225, 233, 123 N.E. 370, 372; cf. Baker v. Bliss, 39 N.Y. 70, 74). Furthermore, "(t)he general rule is that actual possession of real estate is notice to all the world of the existence of any right which the person in possession is able to establish" (Ehrlich v. Hollingshead, 275 App.Div. 742, 87 N.Y.S.2d 682. See...