Cox v. Clift — 2 N.Y. 118

Majority

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Cox vs. Clift.

Headnote

A court of equity will not entertain a bill to remove a cloud from the title to real estate, or for the cancellation of a written instrument, where it is apparent from an inspection of the deed or writing that no danger to the title or interest of the complainant is to be apprehended.

A purchaser at a sale by the Attorney General under a mortgage executed to the people of the state must claim through the advertisement and the sale, and therefore, although the deed given in pursuance of such sale, should profess to convey land embraced in the mortgage but not included in the advertisement and sale, there is no occasion for the owner of such land to resort to a court of equity to remove the cloud from his title.

In the Attorney General’s deed the premises intended to be conveyed were described as the “ remainder” of that part of lot No. 150, Onondaga Reservation, for which a new account was opened in the comptrollers books, in the name of Bildad Barber, being forty-nine and a half rods wide extending across the east end of said lot, and containing sixty-two and a half acres. It appeared that the “ remainder” mentioned in the deed contained only about thirty-six acres, and that the Attorney General had in fact advertised such " remainder” only, without any particular description. Held, that the particular description in the deed, “ forty-nine and a half rods wide, extending, &c. and containing sixty-two and a half acres” should be taken as applying to the entire part fot which a new account had been opened, and not to the “ remainder” of that part, and therefore that the deed on its face did not profess to convey the whole sixty-two and a half acres.

Cox v. Clift, 3 Barb. 481 , affirmed.

Appeal from the supreme court in equity. James Cox filed his bill in the court of chancery against Hiram Clift, Jemima Lawrence and the Attorney General of the state of New York. The case upon the pleadings and proofs was as follows:—On the 17th of November, 1813, one Bildad Barber was the owne; of 62£ acres of land, being a strip 49-)- rods wide and extending across the east side of lot No. 150, in the town and county of Onondaga. The whole lot contained 250 acres and was encumbered by a mortgage executed by David Lyman to the people of this state in 1796, to secure the sum of $1645. On the said 17th November, 1813, a new account was opened in the comptroller’s office against the said Bildad Barber pursuant to the statute, (1 R. L. 476, § 4, and 1 R. S. 175, § 33,) charging him with the sum of $413,55, as the proportion of said

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mortgage due and chargeable in respect to the said 62j acres. On the 19th of January, 1822, John Bacon and Thaddeus Bacon had become the owners by purchase from said Barber of 26 acres, being the north part of the said 62j acres, and on the day last mentioned, a new account was opened in the comptroller’s office against them in respect to said 26 acres, charging thereon the sum of $185,32, and leaving charged upon the residue of said 62| acres the sum of $243,46 principal and interest to that time. On the 22d of November, 1830, James Cox, the complainant, purchased the said 26 acres subject to so much of the mortgage as was charged thereon in the account last mentioned. From the time that account was opened the residue of the 62j¡- acres was known and distinguished, as the bill alleged, as the “ remainder” of the part for which a new account was opened in the comptroller’s books, in the name of Biidad Barber.

For a default in payment of interest on the proportion of said mortgage which was left charged upon the remainder of the 62-J- acres, the Attorney General, on the 14th of December, 1836, advertised such remainder to be sold on the 8th day of June, 1837. The description given in the advertisement was in these words : “ The part of said lot to be sold is the part called and known by the name remainder of the part for which a new account was opened in the comptroller s books, in the name of Biidad Barber.” On the day mentioned in the notice, the premises were sold and struck off to the defendant, Hiram Clift, for $327,54. The affidavit of the person making the sale described the premises*sold, in the same words as last mentioned, with the addition of the words—“containing about sixty-two and a half acres of land.” In pursuance of such sale, the Attorney General, on the 10th of January, 1838, executed to Clift a conveyance in fee describing the premises therein as follows: “ All that certain parcel of land situated in the county of Onondaga, known and distinguished as the ‘remainder’ of that part of lot one hundred and fifty in the Onondaga Reservation, for which a new account was opened in the comptroller’s books in the name of Biidad Barber, being about forty-nine and a

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half rods wide, and extending across the easterly end of said lot one hundred and fifty and supposed to contain sixty-two and a half acres. This deed was recorded June 9th, 1838. Simultaneously with receiving the deed, Clift executed back to the people of the state a mortgage on the same premises, and by the same description, to secure a portion of the purchase money. The mortgage was also recorded. On the 1st of October, 1838, the defendant Clift executed a mortgage to the defendant Jemima Lawrence, to secure the sum of $1350, and in that mortgage the premises covered thereby were described thus :—“ All that certain tract or parcel of land lying in the town and county of Onondaga, and distinguished as part of lot number one hundred and fifty in the Onondaga Reservation, being about forty-nine and a half rods wide, and extending across the easterly end of said lot, containing sixty-two and a half acres of land.” ■ The evidence also tended to show that after the Attorney General’s sale and conveyance, Clift repeatedly claimed title to the complainant’s twenty-six acres as embraced in that sale and conveyance, and that he refused to release the same to the complainant except upon condition that the complainant should pay him a sum of money as the consideration therefor.

The bill insisted that the sale and conveyance by the Attorney General, the mortgages executed by Clift to the state and to Jemima Lawrence, and the claims of Clift, had cast a cloud upon the title of the complainant, and the prayer of the bill was, that his title might be quieted, that Clift might be decreed to release, that the premises might be decláred to be unincumbered by the mortgages aforesaid executed by Clift, and for general relief. .The defendant Clift in his answer disclaimed having any title to, or interest in the premises, and insisted that the facts stated did not cast any cloud upon the title or furnish any occasion for the- filing of the bill. The defendant Jemima Jjawrence answered jointly with Clift. The Attorney General put in a general answer, submitting the rights of the state to the court.

The vice chancellor of the seventh circuit, after argument

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upon pleadings and proofs, made a decree sustaining the bill and granting relief according to the prayer thereof. The defendant Clift appealed, and the supreme court sitting in the Fifth District reversed the decision of the vice chancellor, and directed the bill to be dismissed without costs. See 3 Barbour, 481.) The complainant appealed to this court.

George F. Comstock, for appellant.

I. The rule is now well settled that a court of equity will interfere to remove a cloud from the title to real estate, although the defence at law may be perfect and undoubted. (Hamilton v. Cummings, 1 John. Ch. Rep. 517; Apthorp v. Comstock, 2 Paige, 482; S. C. 1 Hopkins, 143, and 8 Cowen, 386; Pettit v. Shepard, 5 Paige, 493 ; Ward v. Ward, 2 Hay 226 ; Leigh v. Everhart’s ex’rs., 4 Monr. 380; Grover v. Hugell, 3 Russ. Ch. Rep. 432; 2 Story’s Eq. §§ 699, 700 ; 3 Bro. Ch. Rep. 16 and notes; 10 Yerger, 59 ; Piersal v. Elliott, 6 Peters, 85, 100.)

II. The rule relied upon on the other side, and supposed to be laid down in Van Doren, &c. v. The Mayor, &c. of New-York, (9 Paige, 388,) that a court of equity has no jurisdiction to remove a cloud from the title where the objection can be discovered on the face of the proceedings through which the adverse party must claim, is not founded in sound policy or morals, nor is it countenanced by any previous decisions in this country.

The true rule is laid down by Chancellor Kent, in Hamilton v. Cumming, (supra,) which is, “ that the exercise of this power is to be regulated by sound discretion, as the circumstances of the individual case may dictate,” and, “ when the defect appears on the face of the bond, the interference of this court will depend on a question of expediency, and not of-jurisdiction.”

III. In the present case, the appellant is entitled to relief even within the most stringent rule that has ever been laid down on this subject. The records of the county where the land lies show an apparent perfectly good title in the respondent. We have: 1. The mortgage from David Lyman to the state; this covers the whole lot, and of course the premises in question. 2. The advertisement of the attorney general for the sale of the

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“ remainder ” of the part of the same lot set off to Bildah Barber, together with the affidavit of the sale, &c., shewing that the “ remainder ” was sold to Clift. But these papers do not profess to describe the remainder. 3. The Attorney-General’s deed to Clift, in pursuance of the sale, purporting to convey the remainder, and particularly describing it so as to embrace the appellant’s premises. This deduction of title assumes that the Attorney-General, in his deed, correctly described the remainder. We contend that such would be the legal presumption on the trial of an ejectment brought by Clift against Cox; and if this is so, the above title is without fault or flaw on its face, so that extrinsic facts would have to be shown to establish a defence. The equity of the case is somewhat strengthened by the mortgage executed by Clift to Jemima Lawrence, which covers the appellant’s premises without the qualification of the word “remainder,” and by the claim of title repeatedly set up by Clift.

B. D. Noxon, for respondent.

I. The description of the premises sold by the Attorney-General is correct in his notice of sale, and also in his deed to the respondent, and the same covers only the remainder of the sixty-two and a half acres, for which Bildad Barber had opened a separate account in the bsoks of the comptroller. The particular description, “ forty-nine and a half rods wide across the east end of the lot, containing sixty-two and a half acres,” does not purport to designate the “remainder,” but the part for which a new account was opened with Barber.

II. There was no such cloud upon the title of the appellant, to the twenty-six acres owned by him, as to authorize him to come into a court of chancery for relief. (Van Doren v. The Mayor, &c., of New York, 9 Paige 389 ; Simpson v. Lord Howden, 3 Myln. & Craig 97, 102, 103, 108; 2 Story’s Eq. § 700 a; Bromley v. Holland, 7 Ves. sen. 16, 20, 22; 1 Ves. jr., 50; 3 id. 368; 5 id. 286; Piersoll v. Elliott, 6 Peters, 95, 98, 99, 100.)

delivered the opinion of the court. Whatever opinions may have formerly obtained, it ¡now seems to be established, that whenever it is apparent from the writing

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or deed itself that no danger to the title or interest of the com plainant is to be apprehended, a court of equity will not entertain a bill for the cancellation or delivery of the instrument. (5 Ves. 293; Story’s Eq. §700, a.) Nor is there any reason why a party should be allowed to resort to the expensive remedy of a suit in chancery, to procure the relinquishment of a right which, it is obvious the defendant never possessed, and against which, if asserted, the complainant had a perfect legal defence written down in the title deeds of his adversary.

On the 14th of December, 1836, the attorney general published the following notice of sale : “ Lot 150, in the Onondaga Reservation, containing 250 acres, mortgaged to the state by David Lyman, and mortgage registered in the clerk’s office of Cayuga county, December 23, 1796. The part of said lot to be sold, is the part called and known by name of remainder of the part for w'hich a new account was opened in the comptroller’s books in the name of Bildad Barber.”

In prescribing the requisites of a notice of sale in the foreclosure of mortgages to the state, the statute declares that if a new account has been opened upon the books of the comptroller, for any part of the land mortgaged, the notice shall state whose new account, or whether what is called a residue or remainder on said books is intended to be sold. (2 R. S. 214, § 20, sub. 4.) The advertisement distinctly informed the purchaser, that the sale would be the remainder (so called and known) of the part for which a new account was opened on the comptroller’s books in the name of Bildad Barber. To locate the parcel sold, it would be necessary to ascertain the part for which the new account was opened with Barber.

The complainant alleges in his bill that on the 17th of November, 1813, a new account was opened with Barber according to the statute, of a parcel of said lot 150, about 49|- rods wide, extending across the easterly end of said lot, and containing sixty-two and one half acres. All of which appears by the books of the comptroller. This, then, is the parcel set off to Barber. The sale, however, was to be only of the remainder (so known and called) of this parcel. The term implies that a part of the tract assigned to Barber had been previously sold.

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And the complainant accordingly informs us that on the first day of May, 1821, Barber conveyed to the two Bacons twenty-six acres by metes and bounds, part of the above parcel; that the deed was duly acknowledged and recorded; that a new account was opened upon the comptroller’s books with the Bacons, to whose rights and interest the complainant had succeeded; and that from the 19th of January, 1822, when_ the account with the Bacons was opened, that part of the sixty-two and one half acres which was not conveyed to'the Bacons,, and which was not embraced in the new account opened with them, was distinguished, called and known, by the name of the remainder of the part for which a new account was opened with Bildad Barber on the books of the comptroller. So far there would seem to be no difficulty. The advertisement, in connection with the comptroller’s books, which are expressly referred to, identify the parcel to be sold, and demonstrate that it was not, and could not have been, the land of the complainant. Whatever, therefore, might have been the form of the deed from the attorney general, it will be seen by reference to the 1st and 20th sections of the act “ of mortgages to the state,” that the purchaser must make title through the advertisement and the sale in virtue of it; and that the affidavits of publication, and the proceedings upon the sale must be recorded in the office of the secretary of state. (1 R. S. 212, 214.) The interest of the complainant could not therefore have been really in jeopardy, even had the deed contained an erroneous description.

But it does not. The complainant alleges that the premises advertised were, in pursuancé thereof, sold to the defendant, and that on the 10th of January, 1838, the attorney general executed his deed of conveyance, according to the statute, to the former.

The deed which is made an exhibit, recites the mortgage of Lyman to the state, describes the entire lot No. 150 by metes and bounds, recites the advertisement, and sale in pursuance thereof, and then proceeds as follows: “And whereas, at the time and place last aforesaid, all that piece or parcel of land lying and being in the said county of Onondaga, and known and distinguished as the “remainder” of that part of said lot 150.

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Onondaga Reservation, for which a new account was opened in the comptroller’s books in the name of Bildad Barber, being about forty-nine and a half rods wide, and extending across the easterly end of said lot one hundred and fifty, and supposed to contain sixty-two and one-half acres, was, in pursuance of the said notice, offered for sale, and struck off to Hiram Clift, &c. According to the obvious reading of the deed, the remainder only was sold and struck off to the defendant. The only difference between the conveyance and the advertisement is, that the former describes more particularly the parcel set off to Barber, of which the premises, sold were the remainder. The complainant, however, construes the deed in the same manner as if all the description after the word “ remainder” to and including the word “Barber,” were included in a parenthesis—thus connecting the term “being,” and all subsequent thereto, with, and making it a part of, the description of the “remainder” conveyed. If, however, we take the language as written, or if all after the word remainder to and including “acres” is read in parenthesis, the result would be the same. In either case, a grammatical or legal construction of the language would apply the description to the parcel for which a new account was opened upon the books of the comptroller, and not to the remainder of that parcel.

The allegation in the bill, therefore, that said deed purports to convey the whole sixty-two and a half acres to the defendant, is unfounded in fact. Upon the whole, we think there is no foundation for this proceeding. If the defendant has, as it is claimed, unjustly asserted a title to the land of the complainant, the statute to compel the determination of claims to real estate, (2 B. S. 313,) afforded a cheap, expeditious, and appropriate remedy.

The decree of the supreme court must be affirmed.

Decree affirmed.^[1]

1 The doctrine of this case is now firmly settled by numeróos decisions, which will be found collected in Bright. Dig. 1294, 4757.

Cases cited

Cox v. Clift 3 Barb. 481 N.Y. Gen. Term 1848-07-04 p. 118