Phillips v. Owen — 99 A.D. 18

Majority

p. 18

Cassius A. Phillips, as Executor and Trustee under the Will of Addison D. Blair, Deceased, Respondent, v. Elizabeth Owen, Appellant, Impleaded with Others.

Headnote

Notice — the occupation of a house by a mother and son, the record title to which is in the son, is not notice to one taking a mortgage'thereon from the son of a/n unrecorded life lease given by the son to the mother.

In an action brought to foreclose a mortgage it appeared that the mortgaged premises consisted of about five-eighths of an acre of land having four dwellings thereon; that three of the dwellings were used as tenements; that the fourth dwelling was occupied by the mortgagor, a man twenty-eight years of age, who held the record title to the premises, and his widowed mother; that the mortgagor was his mother’s only son and was unmarried and that he and his mother had resided together, constituting one family, since his boyhood; that prior to the execution of the mortgage the son had executed to the mother a life lease of the premises, which lease was not recorded until some years subsequent to the recording of the mortgage.

Held, that the possession of the mother was equivocal, and was entirely consistent with the apparent ownership and the possession of the son, and was, therefore, not sufficient to put a prudent man upon inquiry as to any other or further rights that the mother might have in the premises;

That, consequently, the lien of the mortgage was superior to the mother’s rights under the lease.

Appeal by the defendant, Elizabeth Owen, from a judgment of the County Court of Chemung county in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 12th day of March, 1904, upon the decision of the court, rendered after a trial before the court without a jury, directing the foreclosure and sale of the premises described in the complaint.

Warren J. Cheney, for the appellant.

E. J. Baldwin, for the respondent.

The appellant, Mrs. Owen, claims that the life lease which she took from her son, David H. Allen, prior to the time he executed the mortgage which the plaintiff is now seeking to foreclose, is superior to such mortgage, although such life lease was not recorded until some years after the record of the mortgage. And she bases such claim upon the allegation that she then- held, and has since con-

p. 19

tinned to hold, such a possession of the mortgaged premises as was equivalent to notice of her rights under such lease.

For the purposes of this appeal it may be conceded that the lease was fully executed and delivered to her at the time and in the manner claimed by her, but I am of the opinion that the possession which she is proved to have had was not sufficient to give the notice she claims for it.

The mortgaged premises consisted of about five-eighths of an acre of land, with four houses upon it. In one of them the appellant and her son David resided together, and had so resided for many years. The son was a man in business, about twenty-eight years of age, and had title to such lands, holding them by a conveyance duly recorded from Samuel Minier and wife and John E. Minier and wife. The other three dwellings on the premises were used as tenement houses. Whether any of them were occupied by tenants at the time the mortgage was given does not appear.

The appellant had been a widow for many years, and she and the said David H. Allen, who was her only son and unmarried, had resided together, constituting one family, from his boyhood.

This situation and the foregoing facts were, we may assume, apparent to the mortgagee when she loaned her money to the son David. There were no other facts then apparent that tended to characterize the possession of either the son or of the mother. Both resided on the premises; the record showed the son to be the owner of them, and, therefore, he might be assumed to be legally in possession of them. (Mygatt v. Coe, 147 N. Y. 456 .) And the natural inference therefrom was that the mother was living with her son and as a mere member of his family. Her possession was, therefore, an “ equivocal ” one. It was entirely consistent with the apparent ownership and possession of the son, and, therefore, not sufficient to put a prudent man upon inquiry as to any other or further rights that the mother might have therein. (Brown v. Volkening, 64 N. Y. 76 , 82, 83; Pope v. Allen, 90 id. 298; Holland v. Brown, 140 id. 344, 348; Staples v. Fenton, 5 Hun, 172 .)

I conclude, therefore, that the judgment of the court below is correct and should be affirmed.

All concurred.

Judgment unanimously affirmed, with costs.

Cases cited

Mygatt v. Coe 147 N. Y. 456 N.Y. 1895-11-26 p. 19
Brown v. Volkening 64 N. Y. 76 N.Y. 1876-02-01 at 82, 83 p. 19