Tobias v. Mayor of New York

The action was brought to foreclose a certain mortgage on premises in One Hundred and Eighth street, in the city of New York, between the Third and Fourth avenues, which was executed on the 1st day of March, 1871, by Lesser Golstein to Henry Golstein, to secure the payment of $2,000, on or before the 1st day of October, 1872. This mortgage, by various mesne assignments, came into the hands of the plaintiff on the 12th day of February, 1876, for value.

The defendants, the mayor, etc., were made parties to the action, as claiming some interest in the land in question, under proceedings which had been taken to open Lexington avenue from One Hundred and Second street to the Harlem river, which ivas commenced September 10, 1870, and resulted in an order of confirmation, which was made by the Supreme Court on the 10th day of February, 1874. By these proceedings the lands covered by the mortgage were sought to be condemned for public use, being included within the limits of the proposed avenue.

The complaint is in the usual form, and contains the necessary allegation of a demand upon the comptroller, without which a suit cannot be brought.

The answer admits the making of this demand, and sets up the proceedings under the street opening act, and claims to be seized of the lands in question by force of those statutes, free, clear, and discharged of the lien of the mortgage.

Upon the trial, the defendants were permitted to amend their answer by setting up as a further defence that, for a year prior to the assignment of the mortgage to the plaintiff, the defendants were seized and possessed of the premises in question, and that the plaintiff’s assignors had not been in possession of the premises for such year. The plaintiff put in evidence the bond and mortgage and assignment, and proved the amount due.

The court rendered a decision in favor of the defendant, dismissing the complaint with costs, and filed an opinion in which it *538put the decision solely upon the ground that the assignment of the mortgage, after the order of confirmation, was prohibited by the Revised Statutes. Findings of fact and conclusions of law were made and filed, and duly excepted to.

The court at Special Term deciding this cause upon one ground only, namely, that the assignment of a mortgage to the plaintiff having been made subsequent to the entry of the order confirming the report of the commissioners laying out Lexington avenue, was prohibited by the Revised Statutes (vol 2, p. 713, § 6 [Edm. ed.]), and therefore void. Our attention has been directed to the following provisions of the Revised Statutes, as bearing -upon this question. The following is section six, above referred to.

“ Section 6. No person shall buy or sell or in any manner procure or make, or take, any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such promise or covenant shall have been in possession, or he and those by whom he claims shall have been in possession of the same, or of the reversion or remainder thereof, or have taken the rents and profits thereof for the space of one year before such grant, conveyance, sale, promise, or covenant made;” * * *.

The following is section seven of the same statute :

“ Section 7. The two last preceding sections shall not apply to any mortgage executed by a person not in possession of lands, allowed by the provisions of the first chapter of the second part of the Revised Statutes, nor to any conveyance of lands and tenements to any person in the lawful possession thereof.”

The following are two sections of volume 1, page 690, of the Revised Statutes. (Edm. ed.)

“ (147.) Every grant of lands shall be absolutely void, if at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.”

“ (148.) But every person having a just title to lands, of which there shall be an adverse possession, may execute a mortgage on such lands.” * * *

We are convinced that these statutes have no application to the mortgage in question or the assignment thereof — they were *539intended to prevent the conveyance by deed of land, by a person claiming to be the owner, when another party is in possession claiming adversely to such pretended owner. In this case the mortgagor was the owner of the premises, and in the possession thereof, when the mortgage was executed on the 1st of March, 1871. The order confirming the report of the commissioners opening Lexington avenue was not entered until February 10, 1874. The mortgage was assigned to the plaintiff February 12, 1876, and we are unable to perceive why the mortgage could not be assigned so as to transfer a valid title thereto — it was a valid security, and no part of the principal sum had been paid. It is of frequent occurrence that a mortgage is executed by a party who is the owner and in the possession of land, and who subsequently conveys the mortgaged premises, without any reference in the deed to the mortgage, which is assigned by the mortgagee after such conveyance, and while such grantee is in the actual possession of the land holding the same adversely to the whole world. Yet we have never known the validity of such an assignment questioned, on the ground that it was contrary to the provisions of the statute before referred to. If the defendant’s theory is sound, the practicable effort must be to invalidate all the assignments of mortgages which are executed after the mortgagor has conveyed the premises. Such a result could not have been intended by the Legislature in enacting such statutes, which is apparent from the fact that in such statutes the right to mortgage land held adversely is expressly declared, and the assignment of such mortgage is not in terms prohibited. We cannot doubt but that the plaintiff acquired a valid title to the bond and mortgage by the assignment to him, and that the same is in no manner obnoxious to the provisions of such statute.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

Judgment reversed, new trial ordered, costs to abide event.