p. 859Though such lease contained a provision making it non-assignable without the consent of the defendant, an assignment without consent does not make his right to the property become absolute.
Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order made November 22, 1892, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury.
This action was brought by plaintiff as assignee of all the rights of John S. Elliot, under a lease executed to him by defendant, to compel defendant to execute to him a warranty deed of the premises covered by the lease, or to recover $2,955.20 and interest as damages.
The lease in question was executed under the following circumstances : On February 4, 1891, Eliza H. Elliot, who owned the fee of certain real estate, to secure a loan to her husband of $1,000, executed a deed of said real estate, her husband joining with her, to the defendant; at the same time the defendant gave to John S. Elliott a lease of the same premises for two years, by the terms of which John S. Elliott was to keep the property insured and in repair, to pay to the defendant sixty dollars a year for rent and not to assign the lease. The defendant agreed that upon the payment of said rent, the performing of the other conditions of the lease and the payment to him any time within two years of the sum named, he would execute and deliver to said John S. Elliott, his heirs and assigns, “a good warranty deed and in fee simple” of the premises. Elliott assigned the lease to plaintiff without the defendant’s consent. Plaintiff tendered the money to defendant and demanded a warranty deed, which tender and demand were refused. The judgment required the execution of “a good warranty deed and in fee simple.”
Further facts are stated in the opinion.
John P. Kolias, for app’lt; John P. Badger, for resp’t.
We think the" judgment should be modified so as to limit the warranty in the deed directed to be executed by the defendant, to a warranty against his own acts. The redemption lease was a part of the transaction between Mr. and Mrs. Elliott and the defendant. By its terms the defendant agreed in substance to convey the land to John S. Elliott upon his paying to the defendant the sum loaned with interest, at any time within two years after the execution of the lease, by a “good warranty deed and in fee simple." But the deed executed by the wife being in law a mortgage, her title to the land was not divested thereby, and it would be inequitable to compel the defendant, in an action to which the wife is not a party, to convey the land to the husband by deed of general warranty. The substance of tlie agreement between the defendant and John S. Elliott was an undertaking on the part of the defendant to convey his mortgage interest to the husband by deed purporting to convey land on his paying the amount for which he held the land as security. The
p. 860scope of the warranty to be given should be limited as above stated, and the transaction was, as is found and as is now conceded by both the parties to the action, a loan of one thousand dollars by the defendant to the plaintiff, or to the plaintiff and his wife, upon the security of the wife’s land, and that the deed was in fact a.mortgage. The court ought not to compel the defendant to convey with a warranty broader in scope than the interest which he had, the situation being known to all the parties-to the transaction at the time the agreement was executed. The plaintiff is willing to accept specific performance on the terms'indieated, and the defendant now professes to be willing to perform the agreement if he shall be relieved from the obligation to convey with general warranty. He insisted in his answer and on the-trial that his right to the property had become absolute by reason of the lease having been assigned without his consent, contrary to a covenant therein. But this claim is without foundation as is-satisfactorily shown in the opinions delivered át the special and general terms. It is found that the wife on the trial disclaimed any title to the premises. But her title has never been conveyed by any deed or writing, and such a parol disclaimer, or any circumstances tending to raise an estoppel against her, leaves the matter so uncertain that the defendant ought not to be compelled to convey upon the assumption that her- title has been divested, or upon the ground that an implied power to convey the fee was vested in the defendant under the lease and the deed of the wife, executed contemporaneously therewith.
The judgment should be modified in accordance with this opinion, and as modified affirmed.
The attitude of the defendant in the litigation has been such that we think he should not be relieved from payment of costs, notwithstanding the judgment is modified in his favor. Judgment modified, and as modified affirmed, with costs.
All concur.
Judgment accordingly.