Dawson v. Parsons

This appeal is taken from a clause of the order made June 13, in this action and from the whole of the order of July 11, 1893. _

_ On the granting of the first order the appellant appeared by counsel, and the order recites that no one objected thereto. We had supposed that it was well settled that an appeal does not lie from an order so entered by consent. Flake v. Van Wagenen, 54 N. Y., 25 ; Innes v. Purcell, 58 N. Y., 388 ; Atkinson v. Manks, 1 Cow., 693 .

By consent of the defendant an order of the supreme court has been entered providing “that the plaintiff and defendants in this action' and each of them unite with the receiver in the conveyance of said premises upon the completion of the purchase by the purchaser.” This order remains in full force. If the appellant, at special term, had made the proper objections to the order of the provision therein above quoted, which is appealed from, we might consider whether such a provision could have been properly made before the rendition of final judgment. In that case it may be doubted whether, until the rights of the parties were determined by the judgment, the defendant should be compelled to execute a conveyance of his interest in the real estate in question. But no such point was taken at special term. The appellant consented to the order in advance of the judgment. So consenting, as to him, the order should be deemed to have the same force and 'effect as if entered after judgment. It cannot be doubted that by consent such an order can be made as well before as after judgment and with the same force and effect It seems to follow that as an order of the supreme court which appellant thus consented to and hence cannot appeal from, was duly made which is in full force, directing a conveyance by appellant, he was bound, on a proper demand being made and a proper conveyance tendered to execute the same. And the failure to do so was a contempt

It is not clear that defendant should be compelled to execute a conveyance with a convenant contained therein against his own acts or otherwise. But on examining the affidavit of appellant, it does not appear that he made any objection to signing the deed tendered him on the ground of the covenant therein. He objected to joining in any conveyance, stating that he “is unwilling, by joining in any conveyance of the said property to sanction in any way or to confirm the mode by which his interest in the said property has been taken out of his hands; and deponent also respectfully questions the power of the court by order in this action, and compel deponent to execute a conveyance of his property where he has made no contract of sale,' and has expressed his disapproval of the proceedings by which it is proposed to consummate the sale.”

It would therefore appear that the objection to the deed tendered as containing a personal covenant was not made as a ground of refusing to sign the same. If appellant wished to object to the personal covenant contained in the deed; it was his duty to make the objection when the instrument was tendered to

Our conclusion is that the order to which appellant consented has the same force as if made after final judgment, and defendant is bound to obey it; and inasmuch as he does not appear to have objected when the deed was presented to him for signature to the covenant contained therein, but objected to signing any deed, that the order of July 11th, which was, in fact, made for the purpose of enforcing the order of June 13th, was properly granted.

The order does not, however, compel the defendant to sign the deed tendered to him for execution. It directs him to execute that deed or a proper conveyance of his interest in the premises therein described to Amasa J. Parker as receiver. A proper conveyance is one called for by the order of June 13th, and probably may be without covenants.

The order should be affirmed with costs and disbursements.

Mayham, P. J., concurs; Herrick, J. not acting.