Builders' Mortgage Co. v. Berkowitz — 118 N.Y.S. 804

Majority

p. 804

BUILDERS’ MORTGAGE CO. v. BERKOWITZ et al.

(Supreme Court, Appellate Division, Second Department.

October 8, 1909.)

Headnote

1. Deeds (§ 43^[1] )—1Correction Deed—Effect.

A correction deed prevails over the deeds corrected in respect of the boundaries and the land conveyed.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 59; Dec. Dig. § 43.^[1] ]

2. Mortgages (§ 530^[1] )—Foreclosure—Resale.

On motion to direct a resale of premises sold under foreclosure unless the purchaser complete the sale, and charging the deficiency to him, the court does not make a decision that the title is perfect or imperfect, all of the possible parties in interest not being before it, but only decides whether the title is marketable; that is, whether it is open to reasonable doubt which would suffice to reject it.

[Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 530.^[1] ]

p. 805

Appeal from Special Term, Kings County.

Action by the Builders’ Mortgage Company against Annie Wolf and others. From an order directing a resale of premises sold under foreclosure, and charging the mentioned defendant with any deficiency on the resale unless she completes her purchase, she appeals.

Reversed and motion denied.

Argued before HIRSCHBERG, P. J., and JENKS, GAYNOR, RICH, and MILLER, JJ.

George E. Miner, for appellant.

W. C. Damron, for respondent.

The two lots sold are part of a tract which was conveyed by Morris Bergrin to Benjamin Ullman, by the latter to Rachel Bergrin and by her to the defendant Davis Berlcowitz, mortgagor. Afterwards these three successive grantees united in a new conveyance of the said tract to the said last grantee, it being stated therein:

“This deed being given to correct previous errors in former deeds made between all 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, therice northerly “and parallel 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 ¿f 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, § 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 sold at the foreclosure sale, i. e., about 2% feet on St. Johns 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 to 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 distance 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 to 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

p. 806

it. Wanser v. De Nyse, 188 N. Y. 378 , 80 N. E. 1088 , 117 Am. St. Rep. 871 . 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 to Howard avenue in the correction deed by mistake, instead "of to establish a uniform rear 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 one-half an inch in the length of the second course.

The order should be reversed.

Order reversed, with $10 costs and disbursements, and motion denied, with costs. All concur.

Cases cited

Wanser v. De Nyse 188 N. Y. 378 N.Y. 1907-04-30 p. 806