Burchill v. Culgin — 22 N.Y. St. Rep. 639

Majority

p. 639

Madeline F. Burchill, App’lt, v. James Culgin, Resp’t.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

Deed—Action—To recover money paid—When no eight of action

VESTS.

In 1884, the defendant placed on record a deed from the executors of one Peck, reciting that he was the owner of land on the southerly side of One Hundred and Eighteenth street, New York city, including a strip three feet ten and one-half inches wide. The object of the deed was to correct the easterly line of the land, which was formerly conveyed to one Brewster, who was the defendant’s grantee. The plaintiff demanded of the defendant a deed of this strip as to her lot, which was refused unless he was paid $250. This action is brought by the defendant to recover back that sum, alleging duress and compulsion: Held, that the defendant was under no obligation under the deed from the executors of Peck to convey any portion of it to the plaintiff; that exacting the compensation he did for the strip of land in the rear of plaintiff’s lot and the payment by her, vested her with no right of action.

Appeal from a judgment dismissing the plaintiff’s complaint.

The action is to recover back $250 paid by the plaintiff to-the defendant, which the latter exacted as the price of his executing to her a deed of a strip of land to which he held title and which affected her property, she alleging that the payment was under duress and compulsion.

Plaintiff alleged in her complaint that she was the owner in fee in April, 1886, of No. 1891 Lexington avenue, a dwelling-house, sixteen feet on the avenue and seventy-seven feet and nine inches in depth, situated between One Hundred and Seventeenth and One Hundred and Eighteenth streets. That these premises were a portion of the estate of Margaretha Peck, and were conveyed by her to Henry

p. 640

Brewster in 1863, thereafter, by mesne conveyance, was conveyed to plaintiff in 1881, and that she remained owner until March, 1886, when she contracted to sell the premises -and to purchase others.

It is alleged that then she discovered that “by a misdescription in the deed from Peck to Brewster her title to a strip of land three feet ten and one-half inches in width, on "the rear portion of the premises aforesaid, was so questionable that unless the title was perfected in plaintiff they would refuse to fulfill their contract.”

It is then alleged that the defendant had placed on record, on January 21, 1884, a deed from the executor of -Margaretha Peck, reciting that he was the owner of land ■on the southerly side of One Hundred and Eighteenth street, including said strip of three feet ten and one-half inches, .and that they convey to him the strip.

The plaintiff demanded of the defendant a deed of this .strip as to her lot, which he refused to give unless he was paid $250. The plaintiff then paid this sum under protest.

—The deed made by Edgar F. Peck and the executor of Margaretha Peck to the defendant subjected him to no obligation to convey so much of the land mentioned in it as was in the rear of the lot owned by the plaintiff to her or her grantee. It is true that the object •of the deed was to correct the easterly line of the land conveyed to Brewster, which included the lot owned by the plaintiff. But it was for the benefit of the defendant that the deed was given. The land was conveyed to him as a .grantee under Brewster, but subject to no obligation to convey any portion of it to any other person. Such an obligation will not arise out of the declared object that the deed was made to correct the error in the deed to Brewster. For •the land was conveyed to the defendant without declaring or providing the title should come to any other person than himself. He stood in no privity with the plaintiff, but received the conveyance of so much land to and for himself. And exacting the compensation he did for conveying the .part of this land which was in the rear of the plaintiff’s lot, and the payment of it by her, vested her with no right of action. It paid him for what he owned the title to under the deed to himself. It would be of no benefit to •the plaintiff to re-argue her appeal, for the order could not legally be changed. Her application for leave to re-argue -the appeal should, therefore, be denied.

All concur.