Brown v. Goodwin.

Nor is there any fact stated in the deed to meet the requirements of section 3197, in regard to the serving, publication, and posting of notice of sale.

What is stated in the deed in respect to "due notice and publication of the time and place of sale having been first duly given and made according to law," is not a statement of facts, but is a mere conclusion, which the actual facts may not warrant.

The substantial facts, at least, should have been recited in the deed, or proved on the trial, so that the court might determine whether there had been a sufficient compliance with the act. It should not be left for the collector's conclusion, expressed in the deed, to determine that.

It is not necessary to decide whether or not the recitals in the deed of other facts, in addition to those which are specially required to be stated therein, would be prima facie of such other facts, as no such additional facts are stated therein.

There is a failure of proof, therefore, to authorize the collector to sell under the warrant, the right, title, and interest of Gertrude W. Sharkey in the premises, and the deed in question must be regarded as conveying no interest in the premises, and as void.

There is another view, however, to be taken of this case, which would seem also to be unfavorable to the right of the plaintiff to maintain this action, which is brought on the equity side of the court.

It was decided by DANIELS, J., that Marquis D. L. Sharkey, the husband of Gertrude W. Sharkey, at the time of the recovery of the judgment against him, by William Goodwin (Feb. 2, 1867), had an "equitable interest" in the premises, to the extent of twelve thousand dollars, which interest was sought to be reached in the action in which such decision was made, and it was ordered and adjudged that such interest should be applied upon that judgment.

Brown v. Goodwin.

The lis pendens in that action was filed on March 25, 1867. There is no evidence to show, although it is averred in the complaint, that M. D. L. Sharkey was a partner in either of the firms against whom the tax was assessed, nor that he was in any way liable to pay the same. His interest in the premises, which was adjudged to be "equitable" only, could not, for any cause appearing, have been directly sold under the warrant. It was the legal estate and interest of Gertrude W. Sharkey, which was sought to be, and which was seized and sold.

It may be that were it not for the constructive notice through the lis pendens, filed in the creditor's action brought to reach this interest, a sale of the interest of the wife, in whom the legal title was vested, would have passed or extinguished this equitable interest, or have rendered it impossible for a creditor of M. D. L. Sharkey to have impressed the property with such equitable lien, or interest, in the hands of a bona fide purchaser.

This is stated, however, qualifiedly, for it has been adjudged that a purchaser "by extent of an execution," buys the interest the debtor had, subject to all equities (Perry on Trusts, § 15, 346; Freeman on Judgments, § 357, and cases cited).

It does not distinctly appear when the seizure of the interest of Mrs. Sharkey in the lands was made under the warrant, but the lis pendens was filed before the sale.

It further appears by the evidence, that on June 22, 1867, and at the time and place of sale, a public notice was given on the behalf of the judgment creditors, in the hearing of all persons present, of the judgment against M. D. L. Sharkey, and of the pending proceedings to reach this interest of the judgment debtor.

The collector then sold, and Hubbard, the plaintiff's

Brown v. Goodwin.

grantor, purchased with knowledge of the defendant's claim, that Marquis D. L. Sharkey had an "equitable interest" in the premises, and of the proceeding to reach it, in the only manner in which such equitable interest might be reached and applied, at the instance of a creditor, by a suit or proceeding in equity. And when the plaintiff, who succeeded through a deed of quit-claim, to all the right, title and interest which Hubbard had in and to the premises, afterwards conveyed to Stiles and Robbins, she did so subject to the lien of the judgment determining the equitable interest of M. D. L. Sharkey in the land, and its application to the payment of the judgment in question.

Now while it is beyond question that a purchaser for a valuable consideration, without notice of a prior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as law, according to the maxim that "when equities are equal the law shall prevail;" at the same time it is equally true that if the purchaser, though he does "pay a valuable consideration, have notice of the equitable rights of a third person, he shall hold the property subject to the equitable rights of such person" (Perry on Trusts, § 217, and cases cited).

The evidence shows notice of the outstanding rights of M. D. L. Sharkey, and of the defendant's proceedings in a court of equity to reach the same, before and at the time of the purchase by Hubbard at the sale under the warrant; and as the deed, subsequently executed by the collector, in terms conveyed only the interest of Gertrude W. Sharkey, it should be held that the equitable interest of M. D. L. Sharkey neither passed, nor was affected or extinguished thereby; but that the deed was made and received subject thereto, and that the equitable proceeding of the defendant to reach the same was not prejudiced by the sale or conveyance in question; for it would be unjust in the

Brown v. Goodwin.

extreme, that the early equity secured by a creditor, by action, on the equitable interest of his debtor in land, and of which timely notice was given in the manner sanctioned by law, should be wholly defeated by the sale of the legal estate, under a warrant to collect a tax from one in whom the legal estate has vested, subject to such equitable interest.

The jurisdiction of the court of equity over this equitable interest, duly acquired, cannot be defeated by such sale, but must be maintained until by its final judgment it determines the extent, and makes a disposition of such interest in the action.

But it is claimed by the plaintiff's counsel that the defendants might have redeemed under section 3202 of the U. S. Revised Statutes, and that, through their failure to do so, they have lost whatever benefit and advantage they had secured by the suit in equity and the lis pendens. The right to redeem the land sold might, under the section in question, be exercised by the owner, or any person having any interest therein or lien thereon, upon payment of the amount paid by the purchaser, with interest at the rate of twenty per cent. per annum.

The defendants were not themselves the owners, and had no interest in the land. The interest they were seeking to reach was in Marquis D. L. Sharkey, and was equitable, and not legal.

It may be that the defendants obtained an equitable lien by the commencement of their action, and the filing of their lis pendens, on the equitable interest of M. D. L. Sharkey, in the land. But the existence of this equitable interest, its nature and extent, had not been judicially ascertained and declared, nor was the defendants' lien thereon determined until after the expiration of the period, within which the right to redeem might be exercised.

I do not think the section in question applies to a person in the defendants' attitude at the time, without

Matter of an Unsafe Building.

a judicially declared or legal lien in their favor, and clearly so when the premises were sold and purchased, subject to the defendants' rights, whatever they were, secured by their suit in equity.

The defendants were clearly entitled to prosecute their equity suit to its termination, and reach the equitable interests of their debtor, which they could discover in the action, without being obliged to advance a large sum, with interest at the rate of twenty per centum per annum, during the progress of their action, to redeem land sold for the tax of a person, for which their debtor was not liable, and when in the end it might be determined that the debtor had no equitable in the land. The plaintiff's counsel complains, and with apparent justice, of the defendant's delay after judgment, in enforcing their right thereunder. Whilst delay of the nature suggested will find no favor in a court of equity, yet it is not of a character to entitle the plaintiff to the relief demanded in his complaint. The complaint should, therefore, be dismissed.

MATTER OF AN UNSAFE BUILDING.

N. Y. Common Pleas; Special Term, January, 1877.

UNSAFE BUILDING.-NOTICE OF SURVEY OF BUILDING.-REPORT OF SURVEY.

Under 2 L. 1871, p. 1334, c. 625, as amended by L. 1874, p. 734, c. 547, the preliminary notice of the survey of an unsafe building served on the owner, is the foundation of the jurisdiction of the

court.

Hence, on the trial of the truth of a report of the survey, which, in addition to the defect mentioned in the notice, embraced many particulars showing the general unsafe condition of the building; Held, that only the truth as to the defect mentioned in the notice could be tried, and that to compel repairs in other respects a new survey upon proper notice must be had.