Majority
p. 26TURKES v. REIS. N. Y. Superior Court, General Term, December, 1882.
Headnote
Action to foreclose vendor’s lien.—Parties; trustee of' EXPRESS TRUST.-LlENS, AND RIGHT' OF RENEWAL.An action to establish and foreclose a vendor’s lien can be maintained, although the vendor had never paid the consideration of the prior conveyance to himself, but had agreed with the one 'from whom he had obtained such conveyance, to apply the consideration of it for the benefit of third persons.[1]
In case of a conveyance of a leasehold of' land upon which are valuable buildings, in the value of which the lessee has an interest under the covenapts of the lease, if tlje purchaser obtains a renewal of the lease, an action may be sustained to establish and foreclose ¡ a vendor’s lien against the renewal lease, if there has been no such laches as to preclude relief.
A woman, advanced in years, conveyed a leasehold to plaintiff, by an assignment, mentioning a considerable consideration, which was not,
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however, paid. The plaintiff agreed to distribute the sum, on her death, among her children; but subsequently, with her approval, conveyed the leasehold to the defendant by an assignment, mentioning a similar sum as the consideration, which, however, was not paid. Under the lease, the lessee and his assigns had an interest in the value of the buildings on the premises; and the defendant obtained a renewal of the lease from the lessor, covenanting to perform the conditions and covenants of the lease on the lessee’s part. ZfeZiZ, that plaintiff, though a trustee of an express trust, could maintain an action against the defendant to recover judgment for the unpaid purchase money, and a sale of the leasehold, if necessary, to enforce payment.
Appeal from a judgment for the plaintiff on trial by the court without a jury.
Adam Turkes brought this action against Joseph Beis, to establish an equitable lien for unpaid purchase money upon a sale by him to defendant of certain leasehold property and to enforce payment of the same.
In November, 1858, George Thorn and another obtained a lease of certain land in New York city for a term of years, and entered into possession and erected valuable buildings on the premises. Upon the death of George Thorn, his widow, Elizabeth Thorn, succeeded to his interests under the lease, and assigned her interest to the plaintiff for the expressed consideration of $3,250, which was never paid, the plaintiff having verbally agreed to distribute it, on her death, among her children. Subsequently, with her approval, plaintiff conveyed all his interest under the lease to defendant for the sum of $3,500, no part of which was ever paid.
The lease contained a provision that the lessees might remove the buildings erected upon the demised premises, if so done ten days before the end of the term. The lease expired before this action was brought, but the defendant and his co-lessee had ob
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tained a renewal thereof, which also gave the lessees the right to remove the buildings.
. Upon the trial these facts were established, and the court found as conclusions of law, that plaintiff was entitled to the relief demanded in the complaint.
Defendant appealed.
George Behrens, for defendant, appellant, contended :
I. Plaintiff, from the time of the assignment of the lease to him until he assigned it to the defendant, held the property as a trustee for the benefit of Mrs. Thorn and her children, and his assignment vested in defendant the same rights and made him a trustee for the same persons (2 Story's Eq. J. § 1196).
II. Plaintiff has no vendor’s lien, as the consideration was to be paid not to him, but set apart for the benefit of third parties. Where a conveyance is made for the purpose of creating a benefit for a third party, a lien does not exist (Clark v. Boyle, 3 Sim. 499; Story' s Eq. J. §1233, and notes, §§ 1235, 1219 ; McKlilip v. McKlilip, 8 Barb. 552 ).
III. Plaintiff cannot recover because the lease assigned by Mm to defendant had expired long before the action was commenced, and his claim can only be based on that lease.
Brown é Babe, for plaintiff, respondent.
The action is brought by the plaintiff to establish an equitable lien for unpaid purchase money upon a sale by him, as vendor, to the defendant of certain leasehold property, and to subject the said property to the payment thereof. The answer of the defendant sets up no defense in bar; with the excejjtion of admitting the execution of several instruments touching the property described in the
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complaint, it contains only a general denial. Upon the trial of the issue thus made, the evidence established plaintiff’s cause of action, though the plaintiff may be only the trustee of an express trust.
No error appears to have been committed in the reception or exclusion of testimony. The findings of fact made by the learned judge below are sustained by the weight of the evidence, and they support the conclusions of law based thereon.
The judgment should be affirmed, with costs.
Footnotes
- * Sedgwick, Ch. J., Fueedmak and RusseIl, JJ.
Cases cited
- McKillip v. McKillip 8 Barb. 552 p. 28