Riley v. Sexton , 39 N.Y. Sup. Ct. 245 ( 1884 )

Smith, P. J.:

The appellant is met at the threshold by the objection that his exception to the referee’s conclusions of law is so general that it raises no question for review. There is but one exception and it is in the following form: “ The defendant Pliny T. Sexton excepts to each of the findings of law of the referee in this action.” It is stating the rule too broadly to say that a general exception to several rulings is .of no avail whatever; that such an exception is not available, unless all the rulings embraced in it are erroneous, has been held frequently (Lefler v. Field, 50 Barb., 410; Magie v. Baker, 14 N. Y., 435), and that is the extent to which the cases"go. Within this rule if either of the conclusions of law to which the exception is directed is correct the entire judgment must be affirmed.

The correctness of the conclusion that the defendant Stebbins is entitled to the rent due on said lease on the first day of December, 1880, amounting to the sum. of $593.93, depends upon whether Stebbins is chargeable with notice, at the time of his purchase, that Sexton then had a prior lien upon the rents of the farms in question. Sexton’s claim to such lien must rest solely upon the clause in the $15,000 mortgage, by which the mortgagors pledged to him as security the “ rents, issues and profits ” of the premises. For, of the two chattel mortgages, the earlier one only was executed prior to the assignment of the lease to Stebbins, and that did not transfer the rents, or the lease, in terms, but conveyed “all personal property whatever ” owned by the mortgagors, jointly or individually, and “ all growing crops of all kinds ” on said farms. A description so indefinite cannot be said to amount to notice of the lien on the rents, now set up by Sexton, in opposition to the claim of Stebbins.

The $15,000 mortgage was a mortgage of real estate, and was duly recordéd as such. The referee found that Stebbins knew that Sexton had said mortgage, but he had never seen it nor the recoi’d of it, and did not know that it contained a special clause purporting to give a lien on crops, or rents, issues and profits, nor "had he heard that Sexton had any claim on the lease. Stebbins was not purchasing an interest in real estate, and so was not put on inquiry as to the contents of Sexton’s mortgage. He was bargaining for a mere chose in action, to wit, the written promise of the lessees to pay .a stipulated sum of money as rent. It is true that rent to grow due is regarded as realty as between the grantor of the reversion and bis grantee, so that, as between them it will pass as an incident of the estate, if not expressly reserved, and in such a case it does not pass as a chose in action. (Van Wicklen v. Paulson, 14 Barb., 654.) But where one who is the owner of the reversion, and also the lessor, transfers to a third person the written obligation of the lessee to pay money as rent, the thing transferred, as between them, is a mere chose in action, and not real estate. Stebbins, therefore, had no occasion to inquire as to the contents of Sexton’s real estate mortgage.

So far as the question of notice is concerned, the case is like that of the growing grass in Wood v. Lester (29 Barb., 145), cited by the appellant’s counsel. There the growing grass was so far a part of the realty as that it would have passed under a deed of the. land, unless specially reserved. (4 Kent’s Com. [7th ed.], 518; Foote v. Colvin, 3 Johns., 216; Wintermute v. Light, 46 Barb., 282.) Wood held a mortgage upon the farm, duly recorded as a mortgage of real estate, which in express terms gave him a lien upon “ all the crops of every kind upon said premises.” Lester, the judgment creditor, had actual notice of the existence of the mortgage when he levied on the grass and bought it in at the execution sale; and the only consideration for the sale was the application of the amount of his bid upon a pre-existing debt held by him against Power, the mortgagor and execution debtor; yet it was held that there was no evidence that Lester had any notice or knowledge of Wood’s lien on the grass, and that he must, therefore, be deemed a bona fide purchaser and permitted to hold it discharged of Wood’s lien thereon. Upon the authority of that case it must be held that the facts found by the referee do not show notice to Stebbins, actual or constructive, of Sexton’s lien on the rents reserved by the lease.

It is contended by the appellant, that as to the amount which Stebbins paid by canceling'a pre-existing debt, he is not a bona fide purchaser. There is no exception raising that point, and the record does not show that it was suggested at the trial. It comes now too late. Besides, Wood v. Lester (supra), seems an adverse authority.

It is also contended that the claim of Stebbins against his code-fendant Sexton cannot be litigated in this action, inasmuch as Stebbins has not complied with the requirements of section 521 of tbe Code of Civil Procedure, in respect to demanding relief in bis answer and serving tbe answer on tbe attorney of bis co-defendant before trial. We.tbink that tbe defendant Sexton bas waived that objection, Tbe appeal book does not sbow that it was taken at tbe trial, and tbe fact that tbe referee determined the rights of the defendants, as between themselves, without any allusion being made by any one to the form of the answer, indicates very clearly that Sexton waived, as be might do (Edwards v. Woodruff, 90 N. Y., 396, 400, 401), a compliance with tbe provisions of tbe statute referred to. For that reason be cannot urge it now.

As tbe conclusion of tbe referee in respect to tbe rights of Stebbins is correct, tbe general exception is not well taken and tbe judgment must be affirmed in all respects.

Judgment affirmed, with costs of the appeal to each respondent to be paid by the appellant.

Hardin and Barrer, J J., concurred.

So ordered.