Mead v. Mead — 5 N.Y.S. 302

Majority

p. 302

Mead v. Mead et al.

(Supreme Court, General Term, Second Department.

May 18, 1889.)

Headnote

Mobtgage—Lien—Partition—Sale.

A mortgage was dated and recorded in 1830. The mortgagor took a reconveyance in 1848, subject to the mortgage, and-the reconveyance was recorded in 1873, eight years after his death. His heirs conveyed the property, and one of them—a daughter—afterwards took a reconveyance, and died in 1887, the owner. The mortgage was not mentioned in the conveyances from the heirs or in the reconveyance to the daughter. Held, that the mortgage was presumably good in 1873, when the reconveyance to the mortgagor was recorded, and that an affidavit that for 10 years before her death the daughter alleged that the land was free from all incumbrances was insufficient to require the purchaser at a sale on partition between her heirs to complete the purchase.

Appeal from special term, Kings county.

Action by William B. Mead against Charles A. Mead, Mary Loud and others, for the partition of lands of which Sarah E. Warden, who was the daughter of Daniel Warden, died seised in 1887. A sale was ordered and Prances L. Strong Elliott became the purchaser, but refused to"take title, and Edward W. Sheldon, guardian ad litem of Mary Loud, moved to compel her to do so. The motion was granted oh condition that the moving party procure a certain mortgage to be canceled of record; otherwise the motion was denied. Mary Loud appeals.

Argued before Barnard, P. J., and Pratt, J.

Edward W. Sheldon, for appellant. Baaon & Merritt, for respondent.

The case shows that there is a mortgage outstanding which is an apparent lien on the property sold in partition. The deed proposed to be given by the referee will be subject to this lien, if it exists. The mortgage was dated and recorded in 1830, and the mortgagor took a reconveyance in 1848, subject to this mortgage. This deed of reconveyance was not recorded until 1873. The mortgagor died in 1865, leaving a son and daughter, "and the son conveyed to the daughter. She conveyed away the property, and took a reconveyance, and died in 1887, the owner. There is no mention of the mortgage of 1830, in the deed from the mortgagor’s son to his sister, nor in her deed to her grantee, nor in the deed back again. The purchaser is entitled to a merchantable title. Presumably the mortgage was good in 1873, when the deed of reconveyance to Daniel Warden, the mortgagee, was recorded, as against the owners of the'title. The only proof to show the mortgage paid is that of the plaintiff's attorney, who makes an affidavit that for 10 years before his death the deceased owner of the property claimed that it was free of all incumbrances. The evidence is not sufficient to throw upon the purchaser the risk of its present existence. The condition in the order in respect to a cancellation under the statutes was reasonable, and we think the statutes sufficient to include this case. If proof be made of the facts as shown in the affidavits, and there is no response to the notice given by the court, the proof of payment will be sufficient to order the cancellation. The order should be affirmed, with costs and disbursements.

Pratt, J., concurs.