Citation Numbers: 109 N.Y.S. 622
Judges: Mills
Filed Date: 1/15/1908
Status: Precedential
Modified Date: 10/17/2022
This is an action brought to secure specific performance of a contract for the sale by the defendant to the plaintiff of certain land situated in the city of Yonkers. There - is no controversy as tc any of the facts, except as to exact location of the parcel of land described in one of the mortgages hereinafter referred to. The premises which, by the contract, the defendant agreed to sell and convey to the plaintiff, and the plaintiff agreed to purchase, consist of a triangle of land formed by the intersection of Bennett avenue or Valentine street with Cook avenue, in the city of Yonkers; the tract being bounded on the south by the northerly or northwesterly side of Bennett avenue or Valentine street for about 297 feet, and on the north or northwest by the south or southeast side of Cook avenue for a distance of about 332 feet, and on the east by a line passing through the block at right angles with said side of Bennett avenue, from Bennett avenue to Cook avenue. After examining the title, the plaintiff objected that the defendant has not a good title to the very apex of the triangle, which has been designated in the proofs and upon the Baldwin map in evidence as “Lot 295,” being about 72 feet in length along the base line, viz., the northerly or northwesterly side of Bennett avenue or Valentine street. The defendant maintained that it had good title to such parcel, and offered to make conveyance of the entire tract in accordance with the terms of the contract. The plaintiff refused to accept such conveyance, upon the sole ground and objection that defendant’s title to said lot 295 was defective.
The principal question, therefore, involved in this action, is whether or not the defendant has good title to such lot. Its title comes through a foreclosure by it of two mortgages; it having purchased the premises on such foreclosure, and taken a referee’s deed thereof on the 27th of June, 1905. Such deed purports to convey the entire tract described in the contract. It appears that at the time when the foreclosure action was commenced there were three mortgages affecting or purporting to affect the premises in question or some part thereof. The first mortgage, title to which came to the defendant through assignment, was given on the 28th of December, 1896, and recorded on the 28th of September, 1897. The parties agree that said mortgage did not cover said lot 295, but did cover the rest of the premises described in the contract. The second mortgage was one given to James L. Valentine, one of the defendants in the foreclosure action, on the 7th of October, 1901, and was recorded on the 30th of that month. The description contained in this mortgage is somewhat obscure, and in the briefs submitted by
The action to foreclose was brought upon both mortgages held by the defendant, viz., the first and third mortgages above recited. The complaint alleged each mortgage as a separate cause of action—the first as a first cause of action and the third as a second. It contained certain general allegations applicable to both causes of action. Among these was the seventeenth subdivision, which was to the effect that each and all of the defendants have or claim to have some claim or lien subject and subordinate to the lien of said mortgages; and the eighteenth subdivision, which alleged—
“that the lands and premises herein described, upon which, at the time oí the commencement of this action, the aforesaid mortgages are still a lien and incumbrance, are bounded and described as follows:”
Then followed a description of the entire parcel as subsequently described, and purported to be conveyed by the referee’s deed, including the premises hereinbefore described as lot 295, the very apex of the triangle. James L. Valentine, the then holder of the second mortgage above recited, was a party defendant to said action, and duly served therein. He appeared by attorneys and interposed an answer, which, in effect, alleged that the indebtedness for which the first mortgage described in the first cause of action was given was included in the indebtedness for which the mortgage described in the second cause of action was given; i. e., the third mortgage hereinbefore recited. A trial was had of the issues joined by his answer, and resulted in his contention being sustained. Appropriate findings were made, signed, and filed, and judgment in due form entered thereon. It therefore appears, as I construe the record, that the complaint alleged, the decision found, and the judgment adjudged, that the first mortgage, the one set forth in the first 'cause of action, as well as the third mortgage, the one set forth in the second cause of action, embraced the entire premises.
The plaintiff’s counsel here contends that inasmuch as the first mortgage in fact did not include or cover lot 295, and the third mortgage,
My decision, therefore, is that the plaintiff has failed to establish a case, and that the title tendered by the defendant was good against the objection made by the plaintiff, and that the plaintiff should have accepted the performance offered by defendant.