Katz v. Kaiser

—In March, 1895, Abraham Katz and Louis Maier made an agreement with the defendant to sell him a certain piece of property situated on Ninth street. When the time came for the execution of the conveyance, the defendant declined to take the property, for certain reasons, which will be more particularly stated hereafter, and refused to carry out the contract. This action was then brought by the executor of Katz and by Maier, to compel a specific performance on the part of the defendant of his contract to take the property. The case was tried at the special term, and resulted in a judgment for the plaintiffs, directing the specific performance of the contract, and from that judgment this appeal has been taken.

Two objections were made by the defendant to the title. The first was that there was an unsatisfied mortgage upon the property. The facts in relation to that mortgage, as they appear by the proofs, are that there is unsatisfied of record a mortgage, dated on the 7th day of January, 1839, and recorded on the 22d of February in the same year, to secure something over §1,500. It does not appear by whom the mortgage was made, but for the purposes of this opinion it will be assumed, as it was assumed on the argument, that it was executed by some one who at that time had title to the property, as that was probably made to appear by the evidence upon the trial. The time when the mortgage became due does not appear, and therefore it must be assumed that it ivas payable on demand, and at its date. Martin v. Stoddard, 127 N. Y. 61 , 63 ; 37 S. R. 330. The cause of action, therefore, accrued before the 1st day of July, 1848, and the statute of limitations in force at that time applies to the cause of action upon this mortgage. Code Civ. Proc. § 414. That statute reads as follows:

“ After the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such rights shall be presumed to have been extinguished by payment, but such presumption may be repelled by proof of the payment of some part or by a written acknowledgment of the right of action within twenty years.” 2 Rev. St. p. 301, § 48.

• No proof that any payment had been made upon the mortgage was given at the trial, nor was any written acknowledgment of the right of action produced. The case, therefore, stands upon the presumption of extinguishment which is created by the statute. That presumption is undisputed in this case, and in view of it the court is required to assume that the mortgage had been extinguished, and was no longer

The principal objection to this title, however, is that the lot which had been sold encroaches upon the street, and also upon the adjoining lot upon the west. It is claimed that the lot encroaches one-half inch upon the street: That is disputed by the evidence, and substantially disproved; but, if it existed, it would be of no importance. It appears from the evidence that the building has stood where it now does for over 30 years without objection on the part of anybody, and in such a case as that the fact that it projects a small portion of an inch upon the street is no valid objection to the title. Webster v. Trust Co., 145 N. Y. 275 ; 64 S. R. 698.

The objection is also taken that the building upon the lot encroaches something more than 3-¡- inches over the western boundary. It appears upon the evidence that the property was conveyed to one Roberts in 1851, by a description which fixed the east line at a point 93 feet west of Avenue D, and described the property as extending thence west, on the north side of Ninth street, 25 feet, and completed the description by describing a lot 25 feet wide, front a"nd rear, and 92 feet 3 inches deep. Roberts continued to own the property until some time after 1880. In 1867, as it appears, lot No. 116, which adjoins the lot in dispute on the west, was also conveyed to Roberts, so that he was the owner of both lots. The house which stands upon the lot in question was built, as appears, over 30 years ago, and whether, at that time, it encroached upon the lot immediately west of it or not, there is no doubt that after Roberts became the owner of that lot there ceased to be any encroachment by Roberts upon anybody else’s property, but he was the owner of all the land upon which the house stood. Such being the condition of affairs, Roberts, in the year 1880, mortgaged the property in dispute to the Mutual Life Insurance Company, with covenants of warranty and further assurance, by a description which is precisely like the one in the contract sought to be enforced. In that description the southeast corner of the lot is fixed at a point 93 feet 2

When Roberts gave this mortgage under which the plaintiff olaims, he executed with it covenants of warranty and for further assurance ; and at that time, as is said, he owned both lots, and was therefore at liberty to convey so much of either lot as he saw fit, and locate the line of lot number 115 wherever he desired to, and his action binds the grantees of that lot from him, as also does the covenant of warranty, which is binding upon his subsequent grantees as well as upon himself. Tefft v. Munson, 67 N. Y. 97 . So the location of this house, which he made when he owned both lots, is conclusive upon .any person who subsequently became the owner of either; and a title taken by the description that he then gave, which included the property as it actually existed and was occupied by him, conveys a good title to the house as it then stood.

All concur.