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The New York Exchange Co. v. De Wolf.

induced to come into a legal obligation under a suppression or misstatement of facts, which he ought to have been apprised of, and which, if he had known according to the truth of the case, it is fair to presume he would not have entered into the obligation.

In my opinion, some or all of these questions should have been allowed, and the resolution of October 30 admitted in evidence, and it was error to exclude them. If I am right a new trial ought to be granted.

A question was put to the witness Tracy, the Secretary of the Company, as to what was the amount of the Company's liabilities when it suspended in March, 1856, which was objected to and ruled out. The object of it was to show that the Company must have been insolvent in February preceding, when the defendant's subscription was procured. Had the question been allowed, I should not have deemed it error, nor am I willing to say that it was erroneously excluded. The time within which an inquiry of that nature must be limited, is necessarily a matter of discretion with the Judge.

It was perhaps unnecessary, under the view I have taken in respect to the evidence offered to show fraud on the defendant, to have discussed the other exceptions, but I have done so in order that the counsel may have the benefit of the views of the Court on another trial.

I have not adverted to the question of the plaintiff's title as a bono, fide holder for value, this Court having already decided in General Term, in April, 1858, on an appeal from the decision of the Referee who first tried it, that the terms of the receipt given for this and the other two notes turned over to them at the same time, did not warrant the Court in holding that the notes were received in absolute payment for the rent, and the evidence on the second trial did not on this subject materially differ from that which was adduced on the first. The case is therefore fairly open to the defenses which were interposed on the trial, and have been discussed herein.

In my opinion there should be a new trial.

WOODRUFF, J., concurred in the conclusion of Mr. Justice HOFFMAN, that the judgment should be affirmed. ·

Judgment affirmed.

Wilson v. Davol.

HARRIS Wilson, Plaintiff and Respondent, v. JOHN DAVOL,

Defendant and Appellant.

1. A judgment between two persons, determining the title to land which

both claim, makes part of the title, runs with the land, and concludes all who derive a title to such land from either of those parties, subsequent to

the recovery of such judgment. 2. But it does not bind any person who derives a title from either by a deed

or lease executed prior to the commencement of the action in which such

judgment was recovered. 3. The perfection of a title, by purchase at a Sheriff's sale on judgment and

execution, extinguishes a lease given by the judgment debtor between the time of the Sheriff's sale and the execution of the Sheriff's deed. (Before Bosworth, Ch. J., and Hoffman and MONCRIEF, J. J.)

Heard, December 14; decided, December 31, 1859.

This is an appeal by John Davol, the defendant, from a judg. ment in favor of Harris Wilson, the plaintiff, rendered on a trial had before Mr. Justice SLOSSON, without a jury, on the 23d of April, 1857.

The action is brought to recover rent of the house and lot No. 50 Harrison street, Brooklyn, for three quarters, ending, respectively, November 1, 1849, and February 1 and May 1, 1850; which rent the plaintiff claimed as assignee of a lease of the premises from Jacob Carpenter to the defendant, (dated July 22, 1848,) for two years from the 1st of May, 1848, and also as owner of the premises under a title acquired September 18, 1849, at a purchase thereof on a foreclosure by advertisement of a mortgage thereof executed by said Carpenter to one Sarah Loines on the 2d of December, 1844. The allegations of the pleadings, as to such mortgage and its foreclosure, are stated in the opinion of the Court.

The lot 50 Harrison street is mainly on a lot numbered 75 on a map produced at the trial, and is partly on the adjoining lot, having the map number 76.

The lots, map Nos. 75 and 76, were sold by the Sheriff of Kings county on judgments (being liens thereon) and executions against said Jacob Carpenter on the 15th of December, 1847, and were conveyed by the said Sheriff, by a deed dated March 16,

Wilson v. Davol.

1849, to Sylvanus B. Stilwell, as a judgment creditor of Carpenter, who had duly redeemed the premises so sold.

Davol claimed to hold under said Stilwell from and after the 1st of May, 1849, and refused to pay rent to Carpenter subsequently thereto. It was found, as a fact, that Davol was notified by Stilwell of the said conveyance to him from the Sheriff two or three days after it was delivered, and then agreed to pay, and subsequently did pay, to Stilwell the rent of the premises until the expiration of said lease.

On the 7th of May, 1850, Carpenter assigned said lease to the plaintiff, and all rents accruing under it since October 1, 1849.

On the 14th September, 1850, an action was tried in the City Court of Brooklyn, between the said Jacob Carpenter, plaintiff, and the said Sylvanus B. Stilwell and Isabella Ambrose, defendants, for the recovery of the possession of a lot of ground in Court street, Brooklyn, one of the pieces of property described in said deed of the 16th March, 1849, from the Sheriff of Kings county to said Stilwell. In that action the validity of said deed was passed upon, and the same was adjudged to be void, and judgment was rendered for the plaintiff in said action; which judgment was subsequently affirmed by the Court of Appeals.

To prove the fact of such recovery, and thereby to establish the invalidity of said Sheriff's deed, the plaintiff produced the record of the judgment in the last named action, and the defendant objected to its admissibility as evidence, and excepted to the decision admitting it. The record did not show when such action was commenced. The summons in it is dated " August, 1819;" the complaint in it is verified August 6, and the answer August 31, 1849. It was tried September 14, and judgment was perfected November 14, 1850. That judgment was affirmed by the Court of Appeals in 1854.

The Judge, on the trial of this action, held that Stilwell acquired no title under the deed of the 16th of March, 1819, "and that the defendant is bound by the aforesaid decision (of the City Court of Brooklyn) in relation to said deed;" to which decision he excepted.

The printed Case states the reversal by the Supreme Court of the judgment of the City Court of Brooklyn, and refers to Carpenter v. Stilwell, (12 Barb., 128;) and also states the reversal by

Wilson v. Davol.

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the Court of Appeals of the judgment of the Supreme Court
and affirmance of that of the City Court of Brooklyn, and refers
to Carpenter v. Stilwell. (1 Kern., 61.)
· Judgment was given for the plaintiff for the three quarters'
rent, with interest and costs; and from that judgment the present
appeal is taken.

J. Greenwood, for appellant.

1. The complaint alleges that the lot No. 75, embracing nearly the whole of the demsied premises, was sold to the plaintiff under foreclosure of a mortgage made by Carpenter prior to the lease to the defendant Davol. This sale extinguished the lease as to all of the demised premises comprised in that lot. (Simers v. Saltus, 3 Denio, 214.)

The plaintiff, having alleged this fact in his complaint, cannot now deny it for the purpose of enabling him to recover upon the lease.

II. After the foreclosure and sale of the mortgaged premises, no relation of landlord and tenant existed as between Carpenter, the lessor, and the defendant Davol, and the assignment of the lease in May, 1850, by Carpenter to the plaintiff, carried with it no right to recover rent claimed to be due on and subsequently to November 1, 1849.

III. The title of Stilwell, under the Sheriff's deed of the whole of the premises, was perfect, and the attornment by the defendant to him was therefore legal. The only evidence offered to impeach this is the judgment roll in the case of Carpenter v. Stilwell and Ambrose, in the City Court of Brooklyn, which is not evidence against the defendant in this case. (Jackson v. Rowland, 6 Wend., 666; Nellis v. Lathrop, 22 id., 121.)

1. It is a record of a judgment on ejectment for other premises, and between other parties. (Lawrence v. Hunt, 10 Wend., 80; Jackson v. Wood, 3 id., 27; Snyder v. Sponable, 1 Hill, 567.)

2. It does not appear from the record itself, nor from any proof aliunde, that the validity of the Sheriff's deed was passed upon. (Gardner v. Buckbee, 3 Cow., 120; Burt v. Sternburgh, 4 id., 559; 10 Wend., 84; 1 Greenl. Ev., 88528, 529.)

The judgment should be reversed.

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J. W. Gilbert, for respondent.

I. The plaintiff, as the assignce of the lease, is entitled to recover any rent that became due subsequent to the 1st of October, 1849, although his title to the reversion accrued subsequently. (2 R. S., 4th ed., 154, $ 17.)

1. This assignment was valid. It is an assignment of the agreement to pay the rents, &c.

There was no adverse possession: Davol was in possession under his lease from Carpenter. He claimed in no other way. Although Stilwell had acquired the Sheriff's deed, he never took possession, or attempted to take possession. The case shows that an arrangement was made by which Davol was to pay him the rent. The lease was recognized, and hence the rent was agreed to be paid upon being indemnified.

2. Carpenter had a valid claim for the rent due upon the lease, except so far as the plaintiff had acquired it by his purchase of the premises.

Stilwell, by his purchase, or under the Sheriff's deed, acquired no right whatever. (Carpenter v. Stilwell, 1 Kern., 61.)

3. The plaintiff, therefore, as assignee of Davol's agreement, became entitled to all the rent falling due subsequent to 1st October, 1849. For this he recovered against Davol, and that recovery should not be disturbed.

4. The attornment to Stilwell was a nullity. (3 Denio, 216; 2 R. S., 3d ed., 29, $ 3.)

II. The judgment in the City Court was a perfect estoppel.

BY THE COURT—BOSWORTH, Ch. J. The defendant cannot claim on this appeal that the mortgage on lot No. 75 had been foreclosed, and the lot purchased by the plaintiff, prior to the accruing of the rent which this action is brought to recover.

No such fact is found by the Court nor was proved at the trial; no such fact is admitted by the pleadings.

It is true that the complaint alleges the making of the mortgage; default of the mortgagor; a foreclosure of the mortgage, and a purchase of lot No. 75 by the plaintiff. But the defendant in his answer controverts the allegation of the mortgagor's default, and charges that the mortgagee, (in the endeavor to foreclose by advertising under the statute,) did not advertise accord

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