Slattery v. Schwannecke — 30 N.Y. St. Rep. 4

Majority

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Margaret Slattery, App’lt, v. Albert F. Schwannecke and George Hewlett, Resp’ts.^[1]

(Court of Appeals, Second Division,

Filed February 25, 1890.)

Headnote

1. Fobeclosube—Unbecobded deeds—Rbcobding act—Lis pendens.

A mortgage executed, by Clara Decker and her husband in 1877, was foreclosed in July, 1880, and a referee’s deed to the mortgagee, Hewlett, was recorded December 17, 1880. The latter conveyed the property to defendant, Schwannecke, February 4, 1881, for value, and his deed was recorded March 9, 1881. In the meantime Clara Decker and her husband had conveyed the property to plaintiff by deed executed July 25, 1878, but not recorded until March 15, 1881. Plaintiff was not made a party to-the foreclosure, but the notice of pendency of action was regularly filed July 16, 1880. Held, that as plaintiff’s deed was not recorded until all the other deeds had been placed on record, she was bound by the judgment of foreclosure to the same extent as if she had been a party to the action.

2. Same—Pbincipal and agent.

The knowledge of an agent can be charged to the principal only when clear proof is made that the knowledge was present in the agent’s mind at the time of the transaction, which is the subject of consideration by the court.

Appeal from an order of the general term of the first judicial department which reversed a judgment in favor of the plaintiff entered upon a decision of the special term and granted a new trial.

James O. De La Mare, for app’lt; Albert G. Thomas, for resp’ts.

This action was brought to redeem certain real estate situated in the city of New York from a mortgage executed by Clara Decker and Peter P. Decker, her husband, to the defendant, Hewlett, to secure the sum of $2,000, and bearing date December 13, 1877, and duly recorded in the register’s office of said city.

The plaintiff became the owner of the property by deed from said Decker, dated July 25, 1878, but not recorded until .March 15, 1881.

Intermediate the date of plaintiff’s deed and the date of its record, the defendant, Hewlett, foreclosed his mortgage by action in the supreme court, and on the 28th day of October, 1880, received a deed from Thomas Nolan, referee, pursuant to a sale made under the judgment rendered in said foreclosure action, which deed was duly recorded December 17, 1880.

The plaintiff was not made a party to that action, but a notice of the pendency of the action in the form required by the Code was duly and regularly filed in the office of the clerk of the city and county of New York on July 16, 1880.

On February 4, 1881, Hewlett conveyed the premises to the defendant, Schwannecke, for the consideration of $2,500, of which $500 was paid in cash, and the balance secured by a mortgage upon the same premises. The deed to Schwannecke was recorded on March 9, 1881.

The general term reversed the interlocutory judgment entered

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at the special term in the plaintiff’s favor, and as the order of that court does not state that such reversal was upon the facts, we must presume it to have been upon the law.

The facts found by the trial court are not, therefore, open to review here so far as they are supported by evidence.

The court found that the plaintiff took actual possession of the premises under her deed, and that the defendant Hewlett had actual and express notice of the deed to the plaintiff. Schwannecke was a bona fide purchaser of the premises for a valuable consideration. Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y., 476 ; Wood v. Chapin, 3 Kern., 509.

He acquired by his deed from Hewlett, not only Hewlett’s title, but through the medium of the foreclosure proceedings the title of Mrs. Decker, the mortgagor, and such deed was a bar against her and all parties to the suit. Code Civ. Pro., § 1632 ; Seward v. Huntington, 94 N. Y., 104 —114.

This defendant was, therefore, entitled to the protection given by the recording act against the prior unrecorded conveyance of the plaintiff, and this without regard to the question whether Hewlett had or had not notice of the plaintiff’s deed. Wood v. Chapiin, supra ; Decker v. Boice, 83 N. Y., 215 .

As to this defendant the judgment was properly reversed by the general term.

The defendant Hewlett excepted to the findings of the trial court which I have quoted, and under such exceptions the question is presented in this court as one of law, whether there is any evidence tending to support such findings, and upon that question we will presume that all the evidence given upon the subject embodied in those findings is contained within the case. Halpin v. Phenix Ins. Co., Ct. App., 2d Div., not yet reported; 29 N. Y. State-Rep., 788.

We find no evidence in the record showing that the plaintiff ever had “ actual possession ’’ of the premises, or that Hewlett had “actual and express notice” of the plaintiff’s deed as found by the special term.

It does appear, however, that the attorneys for Hewlett in the foreclosure suit, and who had also made the loan to Mrs. Decker, had notice of plaintiff’s deed. This knowledge was not acquired in any matter or proceedings relating either to the making of the loan or the foreclosure of the mortgage, nor while engaged in the , transaction of any business for Mr. Hewlett, but the information was received from the plaintiff’s husband upon a visit by him to the attorney’s office, to inquire about an abstract of title of the propei ty, a matter that concerned neither the attorneys or Hewlett,, but the plaintiff alone. And for the purpose of supporting the judgment we may presume the fact to be in accordance with this evidence and give to it the same effect as if it had been found by the trial court.

The question, how far a principal is chargeable with notice communicated to, or knowledge acquired by his agent in another transaction at another time, when not acting for his principal, has recently received consideration in this court in the case of Con

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stant v. The University of Rochester, 111 N. Y., 604 ; 20 N. Y. State Rep., 211, and the principle was there settled that the knowledge of the agent can be charged to the principal only when clear proof is made that the knowledge was present in the agent’s mind at the time of the transaction which is the subject of consideration by the court. Within the doctrine of that case the attorney’s knowledge cannot be imputed to Hewlett, as there is not only no proof that at the time of the foreclosure they had in mind the fact that plaintiff held a deed for the property, but all the evidence in the case tends to the opposite conclusion, as it shows that they supposed and believed that one John Slattery was the owner, and he was for that reason made a defendant in the action.

We think, therefore, that the plaintiff’s case falls within § 132 of the Code of Procedure, which was in force at the time of the filing of the notice of pendency of action in the foreclosure suit, and which provided that “ from-the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby, and every person whose conveyance or incumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the action.”

Plaintiff’s deed was not recorded until after all the other deeds for the property had been placed upon the record, and she was therefore bound by the judgment of foreclosure to the same extent as if she had been a party to the action.

In view of the very satisfactory opinion delivered at the general term, it is not deemed necessary to discuss the questions involved at greater length.

The order is affirmed and judgment absolute rendered against the appellant, with costs.

All concur.