Barley v. Roosa — 35 N.Y. St. Rep. 898

Majority

p. 898

Mary E. Barley et al., Ex’rs, Resp’ts, v. Luke I. Roosa, App’lt.

(Supreme Court, General Term,, Third Department,

Filed February 4, 1891.)

Headnote

1. Ejectment—Recovery.

A complaint described twenty-five acres in a single parcel; the court allowed, without amendment of the complaint, a recovery for eleven acres thereof. Held, proper and that the requirement of Code Civ. Pro. § 1511, that “ the complaint must describe the property claimed with common certainty,” etc., did not conflict.

2. Deed—Champerty.

To avoid a grant for champerty the grant must be delivered when the lands are in “the actual possession of a person claiming under a title adverse to that of the grantor.” 3 R. S., 7th Ed., 2196. The .defendant had a title under the mortgagor subject to the mortgage. B. acquired the mortgage title on foreclosure and sold to plaintiffs; this extinguished the defendant’s title. Held, that defendant held, not by an adverse title, but by an extinguished one, and that no case of champerty was made out.

3. Foreclosure—Mortgage to loan commissioners.

The provisions of the Code Civ. Pro., § 2387, &c., do hot apply to the foreclosure of a loan commissioners’ mortgage. The latter is regulated by chap. 2 and chap 150, Laws of 1837, and see also State Cons’t., art. 9, § 1, which requires that the capital of this fund shall be preserved inviolate. The provisions of the statutes above cited were devised to enable the state to keep faith with the United States.

Appeal from a judgment for plaintiff in ejectment.

William Lounsbery, for app’lt; F. L. Westbrook, for resp’ts.

The defendant appeals from a judgment for plaintiff in ejectment, rendered on a trial before the court without a jury-

Both parties claim title under Isaac Lyons, who in 1837 gave a mortgage for $200 to the commissioner of loans of Ulster county upon a parcel of land described by metes and bounds, courses and distances, situate in Marblehead, Ulster county, containing fifty-six and three-quarter acres, less a lot of fourteen acres out of the same, theretofore conveyed to Isaac and Mary Lyons. January 26, 1860, Isaac Lyons conveyed twenty-five acres of mortgaged premises, describing them, to his son, Simon P. Lyons, and also, on the same day, conveyed other parcels thereof, said to be nineteen and one-quarter acres, to his other sons, Michael and John. Simon P. then agreed to assume and pay the mortgage to the loan commissioner as part of the consideration of the deed to him. In 1878, Simon P. conveyed the twenty-five acres to the defendant. Before doing so he paid $100 upon the mortgage in question, and procured from the loan commissioners a release of his twenty-five acres from the lien of the mortgage, thus leaving the portion sold to Michael and John Lyons the principal security for the mortgage. Lucas Barley, in 1878, became the owner of the latter parcel, nineteen and one-quarter acres. Lucas Barley then brought an action against the present defendant, Eoosa, Simon P. Lyons, and the loan commissioners, and recovered judgment therein, adjudging that the release aforesaid is vacated and set aside, and that the said mortgage is not primarily a lien upon the said nineteen and one-quarter acres, but between the said plaintiff,

p. 899

Lucas Barley, and the defendants, Simon P. Lyons and Luke I. Boosa, is a lien and incumbrance on the said twenty-five acres only. Lucas Barley died in 1883, leaving his son, Jacob H. Barley, his sole devisee, and said Jacob died in 1885; the plaintiffs are executors of his will.

Default having been made in the payment of the said mortgage, the loan commissioners foreclosed the same under the statute and made sale of the twenty-five acres February, 1885, to Granville Boice, who in the same year conveyed them to the plaintiffs. The plaintiffs, by their complaint, sought to recover the said twenty-five acres, but the trial court held upon the evidence that the fourteen acres reserved from the loan commissioners’ mortgage was part of the twenty-five acres conveyed by Isaac Lyons to Simon P. and by him to the defendant, and directed a recovery for the remaining eleven acres.

The defendant urges that there was no proof that the lands described in the complaint were part of the premises covered by the mortgage foreclosed. The trial court upon evidence, illustrated by maps of the various parcels, found that eleven acres of the land described in the complaint were embraced in the mortgage. The court in response to the defendant’s requests found what premises were included in the mortgage and what were excepted. We conclude that the parcel not excepted is the parcel for which the recovery was directed, and although it is difficult for us to identify this parcel as part of the mortgaged premises, we assume that the court with the aid of the witnesses who were familiar with the premises was free from the like difficulty.

The defendant further contends that as the complaint described twenty-five acres in a single parcel, a recovery of eleven acres thereof could not be had without an amendment of the complaint. This cannot be so ; the plaintiff can recover to the extent that he makes good his title; the judgment should identify the parcel recovered, thus making it distinguishable and separable from the parcel not recovered. It cannot -be necessary to amend the complaint, since the judgment roll would clearly show not only the parcel recovered, but also, by comparing the judgment with the complaint, the parcel as to which recovery was denied. The cases which hold that the complaint ought to be amended seem to be based upon Holmes v. Seely, 17 Wend., 75 . The unsoundness of this case was satisfactorily shown in Vrooman v. Weed, 2 Barb., 330 . See Van Rensselaer v. Jones, id., 643; Truax v. Thorn, id., 156. The requirement of § 1511, Code Civ. Pro., that “ the complaint must describe the property claimed with common certainty * * * so that from the description possession of the property claimed may be delivered, where the plaintiff is entitled thereto,” is well enough, though it assumes that the pleader would not otherwise know enough to describe what he claims; but it is not necessary to hold that it forbids the court or jury to describe such part or parcel of the whole as is awarded to the plaintiff.

The defendant further urges that the mortgage sale was void, because the loan commissioners advertised for sale less than the whole premises described in the mortgage and included fourteen

p. 900

acres not embraced in it. The judgment in the action in which Lucas Barley, the owner of the parcel embraced in the mortgage, but excepted from the foreclosure, was plaintiff and the loan commissioners, the defendant and his grantors were defendants, was an adjudication in effect requiring the loan commissioners not to proceed primarily against the parcel embraced in the mortgage and owned by Lucas Barley, and to proceed against the twenty-five acres held by the defendant The former adjudication made the exception proper, and the rights of defendant as to the fourteen acres not covered by the mortgage were protected upon the present trial. The former judgment was a substantial direction to the loan commissioners to foreclose as to the whole twenty-five acres, and we do not think the defendant, a party to that judgment, can complain of a procedure, merely as such, when he is permitted to escape from so much of its results as can unjustly affect him. If the procedure was technically at variance with the statute, it was by virtue of an estoppel of record by which he was bound.

Boice was the purchaser at the foreclosure sale and then sold the premises to the plaintiffs. Defendant claimed to hold the-premises adversely to Boice and, therefore, alleges that Boice’s. deed to the plaintiffs was void for champerty. To avoid a grant, for champerty, the grant must be delivered when the lands are in “ the actual possession of a person claiming under a title adverse to the grantor.” 3 R. S., 7th ed., 2196, § 147. The defendant, had had a title under the mortgagor subject to the mortgage. Boice had acquired the mortgage title, which extinguished the defendant’s title. Whatever claim, therefore, the defendant made to the eleven acres was under an extinguished title, and' not under an existing adverse one. Sayres v. Rathbone; 9 Abb., N. S., 277; Jackson v. Collins, 3 Cow., 89 ; Jackson v Bush, 10 Johns., 223 ; Webb v. Bindon, 21 Wend., 99 ; Cook v. Travis, 20 N. Y., 400 . This view also results in disallowing the claim made by defendant under § 1531 of the Code Civil Procedure that the value of his buildings should have cancelled the damages. He did not build any while holding under “ color of title adversely.”

The plaintiffs took title from Boice to themselves by deed, wherein they are described as executors of the last will and testament of Jacob Barley, deceased. We suppose a grantee can annex any description to his name that pleases him, or that tends to-show that he takes title as trustee for another, however imperfectly he may define the character of his trust The plaintiffs add the like description to their names in the title to this action. They do not sue as executors; the words are a mere descriptio personae. Merritt v. Seaman, 6 N. Y., 172 ; Stilwell v. Carpenter, 62 id., 639.

The plaintiffs hold the title; the descriptive words added .to their names both in the deed and in the title to this action may be useful hereafter in protecting the rights of the persons they_ were intended to benefit, and the defendant has no valid objection to their use.

p. 901

The defendant further objects that the foreclosure Oi the loan mortgage was void because no notice was served upon him. If the foreclosure is regulated by the Code of Civ. Pro., § 2387, etc., the objection is valid; if regulated by the special statutes applicable thereto, then it is not. The claim that the Code supersedes the special statutes cannot be valid. By chap. 2, Laws 1837 (3 Edmund’s Statutes, 75), the. state agreed “to receive in deposit for safe keeping its share of the surplus money of the treasury of the United States,” under an act of congress of the preceding year, and pledged the faith of the state for its safe keeping, and for its repayment when lawfully ■ required. By chap. 150, Laws 1837 (3 Edmund’s Statutes, 76), provision was made for the apportionment of such moneys among the several counties, the appointment of loan commissioners, and for the loan of said moneys by the commissioners upon mortgages. Details are prescribed with minute particularity. In case the mortgagor defaults in payment, the act provides that the commissioners “ shall be seized of an absolute and indefeasible estate in fee ” in the mortgaged lands, “ to the uses in this act mentioned,” § 30 giving to the mortgagor the privilege to retain possession until the first Tuesday of February thereafter, on which day the loan commissioners must sell the lands at the court house of the county to the highest bidder. Provision is made for advertising the lands thus to be sold, but not for notice to the mortgagor or occupant. He loses his title by default; the commissioners acquire it for the purposes of a statutory sale; he having the right to redeem -in the interim between default and sale. Thompson v. Commissioners, 79 N. Y., 54 ; Pell v. Ulmar, 18 id., 139 . He knows the tenure of his title, and knows that upon his default his title is gone, and that the commissioners must sell at the time and place fixed by the statute. The provisions of the act of 1837 were devised to enable the state to keep faith with the United States, and although it is a matter of history that the United States practically though not in terms subsequently waived all claim to the money, Benton’s Thirty Years’ View, vol. I, 651, voL II, 38, yet the constitution of the state requires that the capital of the fund shall be preserved inviolate. Art. 9, § 1. It cannot be presumed that the special provisions of the statute for the care and management of this fund are superseded by the provisions of the Code having respect to the foreclosure of ordinary mortgages.

The judgment in the action of Lucas Barley against this defendant and others was entered in April 1883; Lucas Barley died August 13, 1883; August 16, 1883, the attorney for Roosa, one of the defendants in that action and the defendant here, served a notice of appeal. This was permissible under«§ 1297, Code Civ. Pro., but none of the other steps prescribed by that or the following section appears to have been taken. ■ This appeal did not operate as a stay, because of the failure to take the further requisite steps.

Judgment affirmed, with costs.

Learned, P. J., concurs; Mayham, J. takes no part.