Winthrop v. Welling

Ingraham, J.:

The appellant and respondent were the owners of adjacent premises between Seventy-fourth and. Seventy-fifth streets, Fifth and Madison avenues in the city of New York. By an agreement that had been executed by former owners of these two properties an irregular strip of land upon the rear of the said lots was always to remain unbuilt upon, it being expressly provided that this covenant should run with the land and should bind the heirs and assigns of the parties to such agreement. It Was not disputed but that the effect of this agreement was to give to the land of each of the. parties to it an easement in the land included within the strip described belonging to the other party to the agreement. Thus the strip of land described in the agreement that belonged to the party of the first part would be subject to an easement appurtenant to the property of the party of the second part, and the strip of land described in the agreement belonging to the party of the second part would be subject to an easement appurtenant to the property of the party of the first part. The property of the party of the first part to this agreement was subject to a mortgage at the time the agreement was executed, which was superior to the easement granted by the agreement in question. But by this agreemént an interest in the real estate therein described as belonging to the party of the first part Was conveyed to and vested in the party of the second part subject to such mortgage. That' mortgage was foreclosed and the property sold under a decree in the action brought to foreclose it, from which sale there resulted a surplus of $4,019.69, and, in surplus money proceedings, the whole of that surplus was awarded to the respondent, on the ground that the appellant, as the owner of the land to which the easement in question was appurtenant, had no interest in the property foreclosed which would entitle her to an award of any portion of such surplus money. That position, I think, was erroneous.

The referee seems to proceed upon the theory that, as the appellant had no lien upon the property that could be enforced, she- was not entitled to any of this surplus money. It is clear that she had no lien. Her right does not depend upon the existence of a lien, but upon an interest in. the property itself which was appurtenant to the land that she owned that was adjoining. ■ The easement was appurtenant to. the property owned by the appellant, and the prop'•erty owned by the .respondent was subject to that easement. The property of the appellant was an interest in the land of the respondent,.-the land of the appellant being the dominant estate and the land of the respondent being the servient estate.. The appellant'thus-became an owner of an interest in the land itself. ■ It is true that such interest was subject to the mortgage foreclosed; but, subject to such mortgage, it existed as such an interest in the servient estate as. would a tenancy by an.inchoate right of dower,, a tenancy by the curtesy, or any other interest in the estate itself.- Upon the foreclosure of the mortgage, such easement having been destroyed by-the conveyance of the referee, the surplus money' would represent-the estate in the land, which would Include the interest or ownership of both the dominant and servient estates. A. lien may be created by paroi, birt an easement is an.interest in land, and a paroi contract creating it is void under the Statute of Frauds. (Wiseman v. Lucksinger, 84 N. Y. 37.) This sum of $4,019:69 thus stood as the value of' the land covered by the mortgage, subject to the mortgage, and it being in court, it was to be distributed by the court to-those having liens upon such land, and upon the extinguishment of all liens, to the owners of the land itself. And' this appellant, as the . owner of an interest in the land, was entitled to^ that proportion of the surplus money that her interest in the 'land bore to the whole fee of the land..

■The object and purpose of the foreclosure suit was the distribution of the fund arising upon the sale, and the rights and equities of 'the- defendants,. who were lienors or claimants of .the equity of. redemption, were before the court. (Bergen v. Carman, 79. N. Y. 146.). The appellant was made a party defendant because she had such an interest in the land as that the sale of the land by the referee in the foreclosure suit would convey her interest in the land to ' the purchaser, and such conveyance did convey her interest in the land, and such interest as she had vested in the grantee in the ref-' eree’s deed. She was entitled, therefore, to such proportion of .the surplus money as would represent her interest in the' estate thus granted by the referee ; and it was the duty of the referee to have ascertained just what that interest was and just what proportion it bore to the whole estate.

The easement of the appellant, however, was not an interest in all of the property conveyed by the referee. It was merely an easement affecting the property described as the space of land which should always remain unbuilt upon, belonging to the party of the second part in the agreement creating the easement, being a piece of land thirty-eight feet and nine and a half inches in length, five feet in breadth upon the center line of the block and seven feet and seven one-hundredths of an inch in breadth upon the southerly side of said strip. The appellant had no interest in the remainder of the land covered by the mortgage, and was not entitled to any of the proceeds of such land. It was the duty of the referee, therefore, to have ascertained the proportion that this strip of land bore to the whole property mortgaged and then to have apportioned the surplus money in the same proportion, and to have distributed the proportion of the surplus money standing in place of such strip of land between the appellant and the respondent, giving to the appellant the value of her easement in this strip of land, and to the respondent the balance of the amount of the surplus money apportioned to this strip of land.

The interest that these two parties held in this surplus money that was the proceeds of the sale of this strip of land bears a close resemblance to that of the owner of the fee of land, subject to an easement where the land has been taken under the right of eminent domain"; and in such a case it is settled that the amount awarded for the value of the land stands in the place of the land and is to be divided among those owning the land, and a person owning an easement in such a strip of land is entitled to a substantial 'amount of such award. (Matter of Eleventh Avenue, 81 N. Y. 449.) Such an award was there apportioned between the owner of the dominant and the owner of the servient estate, the court saying: “ But the commissioners having, under the direction of the court, awarded substantial and just compensation for the rights and interests of all parties interested in the lands, and having treated them as subject to no public rights, the aggregate of this compensation must represent the entire value of the land taken, and there seems to be no means of equitably adjusting the rights of the- parties except by pursuing the course adopted by the learned référtee of treating alt these rights and interests as having been taken by the city and apportioning the awards among thé several parties in .Whom these rights and interests were vested.” That is, I think, what should be' dotie in' this case. The- referee’s deed having conveyed the interest of this appellant, the', surplus money stands in the place- of the Whole property subject to the mortgage-. In the Matter of Eleventh Avenue a distribution of one-fourth of the award to the serv-ient estate and three-fourths' to. the-dominant' estate was sustained. Under this rule if may be extremely doubtful as to whether the appellant .would he entitled to a very large award, asv it would seem that the proportion of the surplus money that should be awarded to- this strip of ground would be comparatively small and the áward would be limited to the value . of- the easement in each, strip. Thé appellant, however, is entitled to have that amount determined, and for that purpose the order,should be reversed and the case sent hack to the réferée to ascertain the interest of the appellant in this award, applying the principles above, statedten dollars costs .and the disbursements of this appeal' to the appellah-t to abide, the final result- of the proceeding.

Van Bbunt, P. J., and Williams, J., concurredPatteesón and O’Bbien, JJ., "dissented. ■ ■