Schein v. Erasmus Realty Co.

Blackmar, J.:

The mortgage made to Herman Wernmann was a hen on twenty-two twenty-fourths of the property only. If there were any doubt of the right of the widow and seven children to make the mortgage, in view of the power in trust given to the executors to sell, that is set at rest by the fact that the conveyance from Kiendl, the grantee of the executors, to Beihl was subject to this mortgage, and, therefore, neither Beihl nor his grantees could dispute its validity. Upon the foreclosure, however, the purchaser upon the mortgage sale obtained title to twenty-two twenty-fourths of the real property only. No estoppel operated to increase the lien of the mortgage so as to cover the other two twenty-fourths. The extent of the purchaser’s interest, as defined by section 1632 of the Code of Civil Procedure, is the interest of the mortgagor and mortgagee and those claiming under them who were foreclosed by the suit. We think that the deed from Beihl to Local Union No. 147, United Brotherhood of Carpenters and Joiners of America, an unincorporated association, conveyed no legal title, because there was no grantee competent to hold the real property. (Owens v. Missionary Society of M. E. Church, 14 N. Y. 380; Mount v. Tuttle, 183 id. 358; King v. Townshend, 141 id. 358.) The unincorporated association was not capable of holding the title to real property, and such association did not represent a definite membership so that the conveyance might be considered a deed to the individual members of the association described by the name of the association. (Byam v. Bickford, 140 Mass. 31.) We think, therefore, that the legal title remained in Beihl notwithstanding his conveyance to the unincorporated association; and the quit-claim deed subsequently given by Beihl and wife to Gentry, the purchaser upon the foreclosure sale, conveyed to her the legal title of the two twenty-fourths in question.

Recognizing the accuracy of the general rule so cogently stated by the presiding justice, I find no reasonable doubt in the three legal propositions on which the affirmance of the judgment rests; First, that no legal title passed by a deed in which there is no grantee capable of holding real property; second, that a subsequent conveyance by the grantor in such deed can pass the legal title, and third, that any equitable interest created by the deed to the unincorporated association is barred by a foreclosure action in which such association is made a party pursuant to section 1919 of the Code of Civil Procedure.

Hence, the judgment should be affirmed, but without costs.

Putnam, J., concurs in a separate opinion; Mills, J., concurs; Jenks, P. J., reads for reversal, with whom Kelly, J., concurs.