Majority
p. 304ISAAC SIMON, Plaintiff and Appellant, v. ALEXANDER S. KALISKE, Defendant and Respondent. Before Barbour, C.J., Jones and Fithian, JJ. [Decided June 11, 1869.]
Headnote
To render constructive notice to bona fide purchasers of real property, the general registration acts require that all conveyances of interests in land, in the city and county of New York, shall "be recorded in the office of the Register of Deeds. A purchaser, finding, upon examination in such office, no record of a prior grant, is protected, unless actual notice is conveyed to him in some other way. In the absence of such notice, he is not'bound to search the records in the County Clerk’s office .for such conveyance; although, if he had been informed that a conveyance of the land was embraced in an assignment made for the benefit of creditors, it probably would have been his duty to examine the records in the County Clerk’s office, to see if that assignment contained a conveyance of the lands.The case was tried at Special Term before Mr. Justice Garvin.
This was an action, brought by the vendor, in a contract which was made in 1867, for the sale and purchase of a lot of land in this city, against the vendor therein, to obtain a specific performance, or the return of a portion of the - purchase-money paid therefor.
By the contract in question the defendant undertook to execute to the plaintiff “ a proper deed for the conveying and assuring to him the fee simple of the premises, free from all incumbrances,” except certain mortgages therein mentioned; and the plaintiff agreed to pay therefor $6,500 in money, and to assume the payment of those mortgages, and the sum of $3,500 was, then and subsequently, paid by him upon the contract. But, before the delivery of the deed, the plaintiff discovered, upon an examination of the title, that, in 1860, David Vreeland, the then owner of the premises, mortgaged the same to J. C. Lord tor $5,500; that, in 1861, Vreeland conveyed and assigned the land, with other property, to Henry J. Irving, for the benefit of the assignor’s creditors, which deed of assignment and conveyance
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was filed in the County Clerk’s office as an assignment; that, in 1862, a foreclosure suit was brought upon the Lord mortgages^ resulting in a judgment, under which the premises were sold by the Sheriff to John Douglass, who subsequently conveyed them to one Fitzpatrick, by whom they were granted to the defendant • but that Irving, the assignee of Vreeland, was not made a party to such foreclosure suit.
On ascertaining these facts, as well as the further fact that some of the creditors mentioned in the assignment were still unpaid, the plaintiff objected to the title, upon the ground that the estate and interest of Irving in the premises were unaffected by the decree of foreclosure, and requested the defendant to procure a release of that interest, and, subsequently, also requested him to return the $3,500. The defendant refused to comply with either of those requests, but made and tendered to the plaintiff a deed of the premises; which deed the plaintiff rejected.
Ho evidence was given upon the trial tending to prove that Vreeland’s deed of assignment to Irving had ever been recorded in the office of the Register of Deeds, nor that the defendant, or either of the persons under whom he derived title, subsequently to the Sheriff’s sale had any actual notice or knowledge of the existence of such assignment; and, for that reason, the learned J ustice, before whom the trial was had, directed a judgment dismissing the complaint, with costs.
The plaintiff appealed.
Mr. John A. Weeks for appellant.
The laws of this State have provided several record offices for the different descriptions of conveyances and incumbrances affecting the titles to real estate; in this city, the Register office for deeds and mortgages, Loan Commissioners’ office for their mortgages, County Clerk’s office for judgments, mechanics’ and unsafe building liens, lis pendens, sheriff’s and marshal’s • certificates, insolvent assignments, foreclosures by advertisement, and appointment of receivers. The Court at Special Term con-
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eluded that Henry J. Irving, though not a party, was fully barred by the decree in the foreclosure. The notice of lis pendens was filed 25th of June, 1862. By section 132 of the Code, “ every person whose" conveyance or incumbrance is sub' sequently executed, or subsequently recorded, shall be bound by all proceedings taken after the filing of such notice.” But this general assignment was executed and recorded nearly eighteen months prior. Section 132 of the Code does not limit the place of record to the Begister’s office. This assignment was not recorded there. The Begister’s office is the place for the record of deeds and mortgages; other conveyances and incumbrances affecting real estate are to be recorded elsewhere.
By section 33 (sec. 28) of article 3, section 9 of article 5, title i., chapter 5, of the second part of the Revised Statutes, the effect of the insolvent assignments there provided for by law is declared to be to vest in the assignees all the interest of the insolvent at the time of executing the same, in any estate or property, real or personal, whether such interest be legal or equitable (2 R. S., 21 and 30). Every assignment executed under the third;, fourth, fifth, and sixth articles of that title shall be recorded by the Clerk of the county in which it was executed, upon being acknowledged or proved, in the same manner as deeds of real estate (sec. 20 of art. 7 of same title; 2 R. S., 38, p. 112 of 3d vol. of 5th edition).
So that, before the law of 1860, the statutory insolvent assignments were recorded in New York in the County Clerk’s office.
In like manner, and in conformity with this practice, the place of record for general assignments under act of "1860 was fixed by the sixth section of that act as the County Clerk’s office (sec. 6, ch. 348, Act of April 13, 1860, p. 596, Laws of 1860).
That is the only place by law designated for the record of such assignments. By such record of this assignment in that office, on January Y, 1861, Henry J. Irving, within the meaning of section 132, was a person whose conveyance or incumbrance was executed and recorded prior to the filing of the-Us pendens in Lord v. Vreeland, and was therefore wholly unaffected by the
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judgment in the foreclosure. The assignee, Henry J. Irving, inasmuch as he was entitled, under the general assignment which was recorded January 7,1861, eighteen months prior to the filing of the notice of lis pendens, is within the protection of the principles of Price v. Phillips, in this court, and unaffected by the foreclosure proceedings (3 Robertson, 448; Walsh v. Rutgers Fire Ins. Co., 13 Abb. P. R., 33 ; Slee v. Manhattan Co., 1 Paige, 48; Vanderkemp v. Shelton, 11 Paige, 28; The Eagle Fire Co. v. Lent, 6 Paige, 635).
The Court erred in its decision at Special Term, in that it merely dismissed the complaint, and did not finally decide all the rights of the parties on the questions presented by complaint and proof. The whole case was before the Court, and the plaintiff was entitled to have a decision of all the matters in controversy (Bidwell & Banta v. Astor Mut. Ins. Co., 16 N. Y., 263 ).
By the tender of the deed, which is alleged in the pleadings and found by the decision, under the established rule in this State the plaintiff became the debtor of the defendant for the balance of the purchase-money, and was entitled to the convey anee of the property on payment thereof, and of such damages, by way of interest or otherwise, as the defendant may be entitled to for the plaintiff’s delay (Richards v. Edick, 17 Barb., 260 , and cases cited, 265).
Mr. Joshua M. Van Cott for respondent.
The general registration acts require all conveyances of interests in land, in the city and county of New York, to be recorded in the office of the Register of Deeds, to charge bona fide purchasers with constructive notice thereof (1 Rev. St., 755, sec. 1).
Voluntary assignments for the benefit of creditors are not excepted from the operation of the general act by the assignment act of 1860 (Laws 1860, ch. 348, p. 594, sec. 6).
“Every conveyance or assignment made by any debtor or debtors under the provisions of this act, shall be recorded in tJu
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Cleric's office of the county in which such debtor or. debtors resided at the datet thereof; and every, inventory of the property of such debtor or debtors, made under the provisions of this act, shall b & filed in the same office where such judgment is recorded.” The act of 1860 has no feature common to general registration acts. Those acts require the conveyance which describes the property to be recorded / that act merely requires a general inventory of the property, real and personal, to be filed. Those acts require the conveyance to be recorded before it becomes effective, as notice to bona fide purchasers; this act permits the designation of the property to be filed, for all the effective purposes of the act, twenty days after the making of the assignment;.. Those acts require the conveyance to be recorded in the registration district where the property is situated; this act requires the filing of the inventory, not where the property is located, but in any county, however remote, where the assignor may happen to reside. There was no actual notice of the assignment. To make a notice effective, it must reach all the parties through whom the the title is derived. A grantor without notice can convey a good title to a grantee with notice; and a grantor having notice can convey a good title to a grantee without notice (3 Kernan, 509, Wood v. Chapin; 1 Story’s Eq., sec. 409; 8 J. R., 401, Jackson v. Given; 3 J. Ch. R., .147, Demarest v. Wyntroop; 5 Barb. R., 194, Fort v. Burch; 2 Hill, 654 , Hooker v. Pierce; 15 Wend. 595 , Jackson v. Post; 6 Paige, 329, Varick v. Briggs; 7 Cowen, 360, Jackson v. McChesney).
Any record made or notice given after Us pendens filed would have been ineffective (Code [as amended in'1858], sec. 132; 35 N. Y. R., 104, Stern v. O’Connell; 1 Story’s Eq., secs. 405, 406 ; 24 N. Y. R., 613, Cleveland v. Boerum).
By the Court:
The ultimate question to be determined by the Court on this appeal, is, whether the deed which was made. and tendered by the defendant to the plaintiff, would, if accepted by the latter, have vested in him an estate of inheritance in tire
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premises in fee simple, free of incumbrance. For, if it would, such tender and refusal exonerated the defendant from all obligation either to convey the land or to return that portion of the purchase-money which he had received upon the contract, and the judgment dismissing ‘the complaint upon the merits was consequently just and proper.
The assignment to Irving was not a mere incumbrance upon the title, but was a full and complete deed of conveyance of the premises to Irving, in fee, for the purposes of the trust. A purchaser deriving his title from Vreeland, subsequently to his grant to Irving, must be presumed to have purchased in good faith and in ignorance of that deed, unless it appears that he had notice thereof, at the time of the conveyance to himself. The notice required may be either actual or constructive; the latter being the mere creature of the statute, as provided for in a single section (1 R. S., 756, sec. 1), and the other, embracing, at least, such knowledge or information, in the actual possession of the purchaser at the time of the conveyance to himself in regard to the prior grant, as would put a careful, prudent man upon further inquiry.
The fact that the deed of assignment was recorded in the County Clerk’s office was wholly unimportant. The statute provides for but one kind of constructive notice, viz., the recording of the deed in the Begister’s office; and, therefore, the purchaser, finding there, upon examination, no record of a prior grant, would have a right to suppose none existed, unless he had been informed, in some way, that such grant had been made. In the absence of such information, he was no more bound, for his own safety, to search the records in the County Clerk’s office for a deed of conveyance than he was to examine the records of this court for that purpose; although, if he had been informed that a conveyance of the land was embraced in an assignment made by Yreeland to Irving for the benefit of creditors, it probably would have been his duty to examine the records in the Clerk’s office to see if that assignment contained a conveyance of the lands.
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It was incumbent upon the plaintiff to prove, upon the trial, that the assignment to Irving was recorded, as a deed, in the Register’s office, prior to the recording there of the Sheriff’s deed, or to show by competent evidence that the grantee in that deed, and, also, his grantee and the defendant, were informed prior to the recording of their deeds, respectively, that the land had previously .been conveyed by Vreeland. For if either of those persons took and recorded the conveyance to himself in good faith, and in ignorance of the prior grant, his title was not only good, but he could confer a like perfect title upon one who had a full knowledge of suéh prior conveyance. “If this were otherwise,” as Chancellor Walworth says in Varick v. Briggs (6 Paige, 323), “ a bona fide purchaser might be deprived of the power of selling his property for its full value.” As neither of those facts was proven, the complaint was properly dismissed.
The judgment must be affirmed, with costs.