Wilsey v. Dennis , 44 Barb. 354 ( 1864 )

By the Court, Welles, J.

It is abundantly clear, from the evidence, that there was but one mortgage of $700 upon the farm sold by the defendant to the plaintiff, and that one was given to Ann Eliza Bronson, guardian of Catherine Woolsey. This, the plaintiff was bound by the agreement to pay as a part of the foreclosure price of the farm. The records of mortgages of Wayne county contained two other records of mortgages,, precisely like the one mentioned, with a slight difference only in the name of the mortgagee, in one • of them. It happened on this wise. The defendant had negotiated a loan of $700, with Mrs. Ann Eliza Bronson, through her agent, to be secured by the bond of the defendant and a mortgage upon the farm in question. A bond and mortgage were accordingly prepared, which were duly executed, acknowledged and recorded, and were sent, with 'a certificate of search of title, to the agent of Mrs. Bronson, in which the name of the mortgagee was stated “Eliza Bronson.” This mortgage was condemned and rejected by the agent of Mrs. Bronson, on the ground that the name of the mortgagee was not correctly stated. That it should have been Ann Eliza, instead of Eliza Bronson, and the mortgage was returned to the defendant, or his attorney; whereupon the name of the mortgagee was corrected by inserting “Ann” before “Eliza,” in the same mortgage so condemned and returned. The same was again recorded and sent to the agent, who again condemned and returned it, requiring a new mortgage to be made out with the mortgagee’s name properly inserted. This was done; a new mortgage was duly executed by the defendant and his wife, was duly acknowledged and recorded and forwarded to the agent, who accepted the same; and the money was immediately advanced upon it; whereupon the loan, and the securities therefor, became consummated. The first mortgage having been twice recorded, accounts for the appearance upon the record of two mortgages besides the one which was accepted, and was the only one possessing the slightest validity, or which had ever any legal existence as a mortgage, or other binding obligation on any one.

In the eye of the law the first one was never delivered in either of the appearances which it exhibited upon the record, or otherwise. A delivery always implies an acceptance by the person to whom the delivery is made; and although where a deed or mortgage, or an instrument purporting to be such, is properly acknowledged and recorded, the presumption is that it has been duly delivered to the grantee or mortgagee, and that it is, in legal effect, what by the record it purports to be; yet such presumption is only prima facie, and may be rebutted by parol or other evidence, and shown to 'have never heen delivered, or, for any other reason, to possess no legal existence or validity.

■The evidence shows that it was a rule of the mortgagee, or her agent, with whom the transaction was negotiated, to require the mortgage to be recorded, before any money was advanced upon the faith of it-; and this is known'to be the practice of capitalists in loaning money on mortgage security.

When the parties in this case met, at Lyons, about the 6th of April, the plaintiff to pay the $862, and the defendant to deliver the deed in pursuance of the agreement, the two records of the defunct mortgage had been discovered by the plaintiff, and the circumstances above detailed in relation to the first two records were stated and explained to the plaintiff. On the same day a further discovery was made, by an examination in the county clerk’s office. It was a notice of Us pendens, filed April 26, 1858, some ten months before the agreement between these parties for the sale and purchase of the farm was entered into. It was in an action between one Joseph D. Dennis, as plaintiff, and the present defendant and his wife, as defendants. The notice stated the object of the action was to set aside as fraudulent and void certain judgments, and to have a certain sheriff’s deed declared fraudulent and void, and to annul the said judgments’ and deed, together with various other things in the notice specified; which action, if successful, would impair the present defendant’s title to the farm in question, or some part of it. Ifc appeared that the action mentioned in the notice of Us pendens was defended. It was referred to, and noticed for trial before, a referee. It lay along a year or more, and was finally compromised and settled by the parties.

The defendant in this action caused a warranty deed, duly executed by himself and wife, for the premises in question, to be tendered to the plaintiff at the time the $862 was due. and payable, and demanded payment of the last mentioned sum, but the plaintiff refused to make such payment or to receive the deed,, but declared himself prepared to make the payment if the defendant would give him a good unincumbered title for the farm. There was no evidence tending to impair the defendant's title, and really no incumbrance except the one mortgage of $700 which the plaintiff was bound by the agreement to pay. The other two alleged mortgages had really no legal existence as such. . The defendant was bound by the contract, upon payment of the $862, to give the plaintiff a warranty deed signed by himself and wife, and such a deed he tendered the plaintiff. The notice of lis 23endens was in no sense an incumbrance upon. the defendant's title. The utmost that could be said of it was, that it was a cloud upon his title. The defendant was in peaceable possession, and was ready to give like peaceable possession to the plaintiff. And more than that, the plaintiff had gone into possession, under the contract, before the time for that purpose provided in the contract. Afterwards, upon discovering the two records of the non-existent mortgage, and the notice of Us pendens, he abandoned the possession, refused to make further payment, and brought this action to recover back the $138 which he paid at the time of entering into the agreement.

It seems to me he had no color for maintaining the action, but that he is bound to carry the contract into full execution by making the remaining payments and receiving the deed. There can be no doubt, as it seems to me, that the deed tendered by the defendant to the plaintiff, ■ if it had been accepted, would have conveyed the fee simple of the land. The covenant contained in it was for quiet possession, and would, if necessary, have protected the plaintiff against the alleged incumbrances, in case they had proved to be valid and effective and the plaintiff should be evicted under them, or either of them. The contract of sale contained an implied warranty that the vendor was able to convey a good title to the land which he thereby sold.' ([Burwell v. Jackson, 5 Sold. 535.) Beyond that, the rights of the parties must be settled by the agreement between them. In the contract between these parties, the plaintiff agreed to take a warranty deed from the defendant and his wife. The deed tendered contained the common covenant of warranty. It was a covenant for quiet enjoyment. ' That is what is always understood, certainly by the popular mind, by the term warranty deed. If the term included a deed with a covenant against incumbrances, there would be no use in ever inserting the latter in a deed. In the present case, if the existence of a claim of title or of a lien to or upon the land would justify the plaintiff in rescinding the contract, he is bound to show that such claim is valid and legal.

[Monroe General Term, June 6, 1864.

With respect to the notice oí.Us pendens, no attempt was made to prove that there was any foundation for the claim it asserted. It appears to have been a perfectly idle and arbitrary claim. I say this, because there is no attempt to show it had any foundation. It seems to me that it can not be that a man is to be injuriously affected by a mere claim of a third party to his land, in the absence of any evidence to sustain it.

In the case of the records of what was only the form of a mortgage, the defendant has shown beyond the possibility of doubt, that they do not and can never amount to any thing.

I think the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Ordered accordingly.

Johnson, J. 0. Smith, and Welles, Justices.]