Scrymser v. Lawrence — 17 N.Y. St. Rep. 605

Majority

p. 605

Clarence H. Scrymser and Wife, App’lts, v. Cornelia C. Lawrence et al., Resp’ts. Same, App’lts, v. Jane A. Fuller et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

1. Mortgage—Lien of destroyed by sheriff’s deed on sale under JUDGMENT PREVIOUSLY RECORDED.

One W. originally owned the land in question, and conveyed it to B., who reconveyed it to W. January 31, 1860. B. t;.en had a judgment against W. for over $12,000, and one Coe derived title to the interests under a sheriff’s sale of the same. On the second of February, W. and wife executed a mortgage on said premises, which was assigned to one B. Held, that this mortgage being subsequent to the lien of said judgment was subsequent to the Coe title from the sheriff.

52. Same—Sheriff’s deed—How lien of destroyed.

If it was the expectation that the sheriff’s deed should be considered as a mortgage to secure a loan, held, that the giving of another deed would not destroy the sheriff’s deed without a writing,

3. Trust in land cannot be proved by paroi. A trust in land cannot be proved by paroi.

Appeal by several of the defendants from the interlocutory judgments in these actions made at the Westchester special term and entered in the clerk’s office of said county.

On the 5th day of February, 1852, Josiah Eichand James Scrymser, then the owners thereof, and their wives, conveyed to William W. Woodworth the one equal three-eighths part of the premises in the complaint in the action first above entitled, described. On the 5th day of October, 1858, James O. Bell and William Bell recovered a judgment against William W. Woodworth for $12,322.29, which was duly docketed in Westchester county on the -6th day of October, 1858. An execution was duly issued on this judgment, and a sale thereunder was made by the •sheriff of Westchester county for the sum of $5,000, and a certificate of such sale was duly made by said sheriff, which was duly assigned to Frederick A. Coe, and a deed of the premises sold was made by said sheriff to said Coe, December 22, 1864 (consideration $5,000), and was recorded. This deed conveyed, with other parcels, all the right, title and interest which William W. Woodworth had on the 6th day of October, 1858, or any time thereafter, in and to •all the land described in the complaint in the first action. On the 8th day of January, 1866, said William W. Wood-worth and wife conveyed to Frederick A. Coe the one equal undivided three-eights of the lands and premises described in the complaint in the action first above entitled. In the year 1868, the owners, Josiah Eich, James Scrymser, Frederick A. Coe, William Chamberlain and Alexander AT. Lawrence, made application to the commissioners of the

p. 606

land office for and received a grant of the premises described in the complaint in the action secondly above entitled, dated 8th day of December, 1869; under the deeds and the grant above mentioned, Frederick A. Coe, in his lifetime became, and at the time of his death was seized and owner of the undivided three-eights of the premises in the complaint in the action first above entitled, described, and to the undivided one-quarter of the premises in the action secondly above entitled, described.

On the 9th day of January, 1870, the said Frederick A. Coe, died, the owner of the undivided three-eighths of the premises in the action first above, entitled, described, and of the one undivided one-fourth of the premises in the action secondly above entitled, described, leaving a last will and. testament, which was duly probated by the surrogate of Westchester county, wherein he bequeathed and devised to-his widow, the defendant, Ann E. Coe, the use and income of all his real and personal property during her life, and after her death devised said real "and personal property to his nephews and nieces. Alexander A. Wilhs, who is named as executor in said will, is deceased, never having qualified or acted as executor or trustee, under said will of the defendant, and appellant Edward Brown, trustee, claims an interest in the premises in the action first above entitled, described, under a mortgage alleged to have been executed by William W. Woodworth and wife, to Ethan Flagg, dated February 1, 1860; acknowledged February 2, 1860, and recorded February 8, 1860. The judgment aforesaid became a lien upon the premises in question on the 31st day of January, 1860, and before the execution of said mortgage.

No attempt was ever made to realize anything upon this mortgage orto foreclose the same until November, 1883, some twenty-three years thereafter, and it was believed that at the time of the commencement of the foreclosure action, there were no outstanding or unpaid bonds, to secure which, this mortgage purports to have been given.

George H. Forster, D. S. Updike, and R. E. & A. J. Prime & Burns, for app’lts; Close & Robertson, for Ann E. Coe, executrix and trustee, resp’t.

The question presented in each of these cases was the same. Did Frederic A. Coe have any interest in either of the parcels when he died ? It appears that the lands or interests in these in question originally belonged to one William W. Woodworth. Woodworth conveyed to Bell, and Bell reconveyed to Woodworth January 31, 1860. Bell andBell then had a judgment against Wood-worth for $12,322.29, and Coe derived title to the interests

p. 607

under a sheriff’s sale of the same, by deed delivered in January, 1866. The mortgage to Brown’s predecessor as trustee was subsequent to the hen of the judgment, and consequently subsequent to the Coe title from the sheriff. The effect of the grant of the land beyond low water mark was to convey a title, except where the grant was of land in front of a street. The street would extend over the land under water as fast as it was filled. Wetmore v. The Atlantic White Lead Co., 37 Barb., 70 .

There is no proof in .the case which even tends to show that this deed was not absolute. Declarations that Coe made that he held the title for the judgment debtor, and that he had little interest in the land, are not sufficient to destroy the effect of the deed. A trust inland cannot be proven by paroi. Sturtevant v. Sturtevant, 20 N. Y., 39 .

It is true that a deed may be proven a mortgage by paroi; that it was given as security for a loan, and not with the intent to pass an absolute title. Coe subsequently took an. absolute title in form, and it was competent to prove this deed to have been given as security for a loan ; but if it-was, and if it was the expectation that the sheriff’s deed should be so considered, it would not destroy the sheriff’s-deed without a writing. As to all the defendants but Brown, trustee, the judgment of Lawrence v. Sanders and Lawrence v. Fuller, are res adjudicata. The question of the validity of the deed from Woodworth to Coe was in issue by the pleadings and the judgment was based after a trial of the issue upon the validity of the deed as an absolute one.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs ; Dykman, J., not sitting.