Parkinson v. Jacobson

George W. Rinchey was the owner of real estate in the city of Brooklyn. Plaintiff was his wife and the infant ward was their child. The infant, by plaintiff, presented a petition to the Supreme Court in the city of New York, on the 27th day of November, 1867, stating that the father had died on the 20th of July, 1866, in Mexico, intestate, seized, etc., leaving the infant his only heir, and prayed for leave to sell said property. Plaintiff was appointed special guardian, and the several proceedings were had upon the petition resulting in an order for the sale and conveyance of the mortgaged premises, and pursuant to such order the same were sold and conveyed to one Jacobson. Jacobson gave back to the plaintiff the bond and mortgage in suit for a part of the purchase-money. Afterwards Jacobson conveyed said premises to the defendant Mary A. Sherman, and she assumed the payment of the mortgage. The defendants now set up as a defense to this action that Rinchey was alive when said order of sale was made, but do not aver any eviction or disturbance of the possession of said premises.

We think the defense was a sham one. It sets up no breach of covenant by the plaintiff nor any eviction of the.defendants. It is well settled that where the purchaser remains in quiet and peaceable *319possession of the premises, he cannot have relief against the contract to pay the purchase-money or any part of it on the ground of defect of title, nor does the fact that there may be a judgment for a deficiency against the defendants enable them to defend because of a failure of their title, until after an eviction. (Thomas on Mortgages, 292, et seq.; Thorp v. Keokuk Coal Co., 48 N. Y., 256.)

The order must be affirmed, with costs and disbursements.

Order striking out parts of answer affirmed, with costs and ■ disbursements.