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Builders Mortgage Co. v. Berkowitz

134 A.D. 136 Court Second Department, Decision date 1909-10-08 English

Delivered by Gaynor, J.:

Contents

Majority

p. 136
Builders Mortgage Company, Respondent, v. Davis Berkowitz and Others, Defendants. Annie Wolf, Purchaser, Appellant.
Second Department,
October 8, 1909.

Headnote

Real property — deed correcting prior deeds — foreclosure — motion to charge defaulting purchaser with deficiency — validity of title not determined.
A correction deed prevails over deeds corrected in respect to the boundaries and the land conveyed.
On a motion to charge a purchaser on foreclosure with any deficiency on a resale in case she refuses to take title, the court will not determine whether the title tendered is perfect or imperfect where all the parties in interest are not before it. It will only decide whether the title he marketable, that is to say, whether 1 it be open to reasonable doubt, sufficient to entitle the purchaser to reject it.
p. 137
Appeal by the purchaser, Annie Wolf, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of.Kings on the 9th day of February, 1909, directing a resale of premises sold under a judgment of foreclosure and sale and charging the purchaser with any deficiency on the resale unless she should complete her purchase.
George E. Miner, for the appellant.
W. C. Damron, for the respondent.

The two lots sold are part of a tract which was conveyed by Morris Bergrin to Benjamin Ullman, by the latter to Kaehel Bergrin and by her to the defendant Davis Berkowitz, - mortgagor. Afterwards these three successive grantees united in a new conveyanee of the said tract to the said last grantee, it being stated therein, “ this deed is being given to correct previous errors made in former d eed made between all of the parties herein”. The description in such correction deed begins at the Southwest corner of Howard avenue and St. Johns Place, runs thence South along the West side of Howard avenue 82 feet 6-| inches to the Northerly side of Eastern Parkway Extension, thence Westerly along said North side of said Eastern Parkway Extension 88 feet, thence Northerly “andparallel with Howard avenue ” 130 feet 10 inches to the Southerly side of St. Johns Place, thence Easterly along the said Southerly side of St. Johns Place 90 feet 5 inches to the starting corner. The only variations in this description from the ‘ description in the said previous chain are that the length of the second course is changed to 88 feet from 88 feet and inch,’and in the third course the words “parallel with Howard avenue” are introduced. No other corrections are made of the said prior deeds. A correction deed prevails over the deeds corrected in respect of the boundaries and the land conveyed (Devlin on Deeds, vol. 2 [2d ed.] sec. 850c).

If the third course be taken as parallel to Howard avenue, the length of the last course is about 2)- feet shorter than that given, while that of the third is a trifle shorter, an inch or so; about 130 feet 9 inches, instead of 130 feet 10 inches. In that way a strip of the rear of the lots described in the mortgage and judgment, and

p. 138
sold at the foreclosure sale, i. e., about 2% feet on St. Jolms Place and running down to about one half of that at the other end, is cut off. In order to avoid this, the words parallel with Howard avenue must be disregarded, in which case the third course will lean off to the West, and come to St. Johns Place 90 feet and 5 inches from the corner of that street and Howard avenue, which is the distanúe by the description, instead of coming to it at a point about 88 feet from that corner, as is the case if the said third course has to be taken as parallel with Howard avenue.

On a motion like this the court does not make a decision that the title tendered is perfect or imperfect, all of the possible parties in interest not being before it. It only decides whether it be marketable, i. e., whether it be open to reasonable doubt, for that suffices to reject it (Wanser v. DeNyse, 188 N. Y. 378 ). The rule that courses and distances give way to monuments is of no use to us, for there is no monument to help us out. But it does not seem that it can be said with any certainty that the third course was made to read parallel with Howard avenue in the correction deed by mistake, instead of to establish a uniform Tear line for all of the lots fronting on Howard avenue; a line in the block parallel with the street lines, as is usual. There is nothing in the case to rebut the reasonable supposition that this was the object of the correction deed. Unless this was its object, there is no apparent reason why it was ever made. It seems reasonably certain that it was not made to drop -g- an inch in the length of the second course.

The order should be reversed.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.

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