W3i ((nrtipU Slaui ^rlyonl ICtbrary Cornell University Library KFN5140.W39 V.1 Practical real estate law / 3 1924 022 803 849 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022803849 PRACTICAL REAL ESTATE LAW BY . f f V '" WILLIAM X. ^EED OF THE '\VESTCHESTEJ^ CoUXTY, j^EW YoiiK, BaH IN TWO VOLUMES VOLUME I Albany^ iN. Y. MATTHEW BENDER & COMPANY, IKCOEPOEATED 1920 Copyright, 1920 By WILLIAM X. WEED PREFACE. This work is intended to cover tlie whole field of practical real estate law, including title examination, the determination of marketability, the clearing of objections to titles, and real estate litigation; and it will, by quick reference, answer the everyday questions which arise therein, without the extensive use of a library or digest. It is an alphabetical arrangement of the disposition made of all of the important questions which have arisen in my twenty-five years of exclusive real estate work, combined with the application of the principles of all reported cases. The statements printed in italics are invariably either my rulings on actual cfiSes,'" br-- warnings regarding the application of specific judicial decisions; and these opinions have been concurred in by some of the best specialists in real estate law. The use of rambling and obscure generalities, so commonly found in text books, has been carefully avoided. The most advanced title work is the disposition of questions which have arisen from the examination; and in considering cases to decide questions of title, the lawyer will avoid many of the pitfalls so frequently fallen into, if he will constantly bear in mind that he is not in court and does not possess the power of a court to determine facts with binding effect; and for that reason he cannot use or apply many principles which are well settled by the adjudicated cases. In other words, the facts cannot be judicially determined by him, but he must work only from the records and from such extrinsic facts as he can gather and establish, or can determine on his own responsibility. Acknowledgment is made to Mr. John T. Fitzpatrick, Law Librarian of the University of the State of New York, for the duplicate citations, valuable suggestions as to arrangement, and general editorial work. White Plains, N. Y., April 5, 1920. WM. X. WEED. PRACTICAL REAL ESTATE LAW ABATEMENT. (See Action; Death.) ABSENCE FROM STATE. (See Limitation.) ABUTTING WALLS. (See Encroacliment. ) ACCELERATION. (See Remainders.) *ACCOUNTING. A JITDICIAL ACCOUNTING VALIDATING A DEFECTIVE SALE OF HEAL ESTATE. — A judicial accounting for the proceeds of sale of real estate frequently validates an irregular or defective sale. The theory is that persons who receive the proceeds of the sale of land ivill not lie heard in a court of equity to question the regularity of the sale. This must not he confuted with the case of receipt of proceeds of sale without an accounting. For this see under Estoppel. An accounting before tlie surrogate is practically an approval and ratification of the acts of executors in selling real estate and * See also Heaton's Surrogates' Courts (3d ed.) ; Schouler on Wills .(5th ed.) ; N. Y. Rpts., Bender Annoiated Ed., Bk. 31, p. 547. 1 2 PRACTICAL REAL ESTATE LAW. of the price received for the property. And this is so even against infants if they are represented by special guardians. Mutual Life Ins. Co. v. Schwaner, 36 Hun, 373, aff'd 101 N. Y. 681. An accounting by a surrogate's decree for the proceeds of sale, with knowledge of the infirmity will even bind unborn remaindermen after a trust, if the will effects equitable conver- sion. The curative effect of such a decree is not limited to cases when the time of distribution has arrived and distribution is made. Infants and incompetents are bound if cited and repre- sented by guardians. (Rhodes v. Caswell, 41 App. Div. 229, 58 N. Y. Supp. 470.) The principle of this case has never been modified, overruled or even criticised, and it has been cited with approval or followed in the following cases and many others : Allen v. Kelly, 55 App. Div. 454, 67 N. Y. Supp.' 97. Matter of Elting, 93 App. Div. 516, 87 N. Y. Supp. 833. Strauss v. Benheim, 28 Misc. 660, 59 N. Y. Supp. 1054, aff'd 162 N. Y. 469, 56 N. E. 1007. Wright V. Mercein, 34 Misc. 414, 420, 69 N. Y. Supp. 936. Wyeth V. Sorohan, 38 Misc. 173, 77 N. Y. Supp. 263. Taylor v. Klein, 47 App. Div. 343, 348, 62 N. Y. Supp. 4, aff'd 170 N. Y. 571. But it is not safe to rely on an accounting during the existence of a trust unless there is equitable conversion. An accounting in a surrogate's court by an administrator ^ for the proceeds of lands sold by him without authority, or which he has not sold at all, will not confirm the title against an infant. In order to bind infant remaindermen it must be shown that the money was received with knowledge that it w:as the proceeds of sale of the property. Moore v. Appleby, 36 Hun, 363, aff'd 108 N. Y. 237, 15 N. E. 377. It is not essential that the facts rendering the sale invalid be set forth in the proceeding for the settlement of the account and an issue as to its voidable character tendered. Weintraub v. Siegel. 133 App. Div. 677, 118 N. Y. .Supp. 261, rev'g 67 Misc. 246, 109 N. Y. Supp. 215. Jt is much safer to do this however. Care must be had in relying upon an accounting in a roEEiGW court, because it is not certain that proceedings there would have the same ACCEETION. 3 effect as would a decree of a court in this state. But if the foreign court has jurisdiction of the subject matter and the parties, its decree would probably be held here to confirm the title. ♦ACCRETION. Accretion defined: The formation must be imperceptible. Matter of Smith, 137 App. Dtv. 652, 122 N. Y. Supp. 281. The filling up of a bay by the upland owner by cutting down banks and bluffs, does not give title by accretion. Mulry V. Norton, 100 N. Y. 424, 3 N. E. 581. Saunders v. N. Y. C. & H. R. R. Co., 144 N. Y. 75, 83. The subject of titile made by accretion resulting in changes in the sea-coast, is extensively considered in Mulry v. Norton, 100 N. y. 424, 3 N. E. 581. Accretion considered. N. Y. L. J. (editorial), July 16, 1913. When the change is so gradual as not to be perceived in any one moment of time, the proprietor whose land on the bank of the river is thus increased is entitled to the addition. Halsey v. McCormick, 18 N. Y. 147. The same rule applies on a pond; but a description running along high water mark of a pond, will not carry to the grantee subsequent accretions; because the line thus given is a fixed and permanent one, at high water mark ^t the time of the con- veyance. Cook V. MoClure, 58 N. Y. 437, rev'g 2 T. & 0. 434. If a river running between the lands of separate owners, insensibly or by imperceptible degrees, gains on ofte side or the other, without artificial means, the title of each owner continues to go to the middle thread of the stream. Gerard, Titles to Real Estate (5th ed.), p. 924. * See also N. Y. Rpts., Bender Annotated Ed., Bk. 20, p. 936. 4 PRACTICAL REAL ESTATE LAW. When soil (or a pier) has been wrongfully deposited in the public waters opposite the upland, by another than the upland owner, and the water line carried further out, as between the upland owner and the wrongdoer, the accretion becomes the property of the former; and his title still extends to the water line. "Natural justice requires that such accretion should belong to the upland owner so that he will not be shut off from the water, and thus converted into an inland rather than a littoral owner." steers v. City of Broofclyn, 101 N. Y. 51, 4 N. E. 7. ACKNOWLEDGMENTS. ♦ACKNOWLEDGMENTS. (See Venue.) 1. In general. 2. Authentication. 3. Before clerk of Surrogates' court. 4. Before commissioners of deeds. 5. Before commissioners of deeds of New York city. 6. Before consular officers. 7. By corporations. 8. Before court clerks. 9. Before diplomatic officers. 10. Disqualification. 11. Before federal judges. 12. In Canada. 13. In District of Columbia. 14. In German Empire. 15. In Great Britain. 16. In New Jersey. 17. In Norway, Sweden or Denmark. 18. In United States dependencies. 19. Before judges out of state but in United States. 20. Before justice or judge. 21. Before justices of the peace. 22. By married women. 23. Before mayor or recorder of city. 24. Before New York commissioners out of state. 25. Before notaries public. 26. Before other officers out of state but in United States. 27. Place of taking. 28. Before police or city magistrate. 29. Proof by subscribing witness, 30. By special guardians. 31. Sufficiency. 32. Before surrogate. 33. Taken on Sunday. 1. In general. By our Revised Statutes, every grant in fee must either be acknowledged or witnessed, in order to take effect at all. 1 R. S., 738, § 137. • See also Skinner's Notaries Manual ; Bliss' Code of Civil Procedure v 6th ed. ) , and Supplement, 1919; Parsons' Code of Civil Procedure; N. Y. Rpts., Bender An- notated Ed., Bk. 21, p. 172, Bk. 30, p. 738. 6 PRACTICAL EEAL ESTATE LAW. The law in force at the time when the acknowledgement was taken, governs. Richardson v. Pulver, 63 Barb. 67. In deeds it is a waste of time to consider the sufficiency of acknowledgments taken before the Revised Statutes, but regard- ing such acknowledgments in deeds not yet recorded or recorded within the last thirty years, the following cases are of interest: Bradstreet v. Clarke, 12 Wend, 602, 673. Jackson v. Gumaer, 2 Cowen, 552. Hunt V. Johnson, 19 N. Y. 279. West Point Iron Co. v. Eeymert, 45 N. Y. 703. Of instruments other than deeds, § 15 of the Statutory Con- struction Law (L. 1892, ch. 677), now General Construction Law (L. 1909, ch. 27), § 10, provides that the terms acknowledge or acknowledgment, when used with reference to the execution of an instrument in writing other than a deed of real property, includes an acknowledgment before an officer authorized to take the acknowledgment or proof of the execution of a deed of real property to entitle it to be recorded in a county clerk's office; and that it shall be certified in the same manner as such acknowl- edgment, or proof of said deed; and § 255 of the former Real Property Law (now Real Property Law, § 306) imposes upon the acknowledging officer the duty of signing a proper certificate. Kennedy v. Warner, 51 Misc. 362, 365, 100 N. Y. Supp. 616. L. 1905, ch. 450, amends the former Real Property Law, § 255 (now Real Property Law, § 306), by adding the following: "Any conveyance which has heretofore been recorded, or which may hereafter be recorded, shall be deemed to have been duly acknowledged or proved and properly authenticated, when thirty years have elapsed since such recording; saving, however, the rights of every purchaser in good faith and for a valuable consideration deriving title from the same vendor or grantor, his heirs or devisees, to the same property or any portion thereof, whose conveyance shall have been duly recorded before the said period of thirty years shall have elapsed or before this act shall have taken effect." This act being merely a statute of limitations is undoubtedly con- ACKNOWLEDGMENTS. 7 sUtutional; and the practical effect of it is to prevent the raising of questions as to the acTcnowledgment of any deed after it has been recorded for thirty years. A title may now be safely tahen through a defectively acknowledged deed, oe. even one not acknowledged at ALL, which has been recorded for thirty years upon a search against the grantor for the period of thirty years after the recording, which fails to show any such purchaser. By persons in the military or naval service of the United States. See Real Property Law, § 300. as amended by L. 1918, ch. 116. 2. Authentication. Statutes.— §§ 310, 311, 312 of the Eeal Property Law; (§§ 259, 260, 261 of former Real Property Law). Essential. — A county clerk's certificate on the acknowledg- ment to a deed, is essential to prevent a rejection by the vendee. Smith Jr., v. Smeltzer, 1 Hilton, 287. Omission of name of acknowledging officer. — The omission from the county clerk's certificate of the name of the acknowl- edging officer is not fatal; the signature to the acknowledgment may be read into the clerk's certificate. Nor is the lack of a seal on a county clerk's certificate fatal, if a seal is recited. The presumption of the due performance of duty obtains. Thorn v. Mayer, 12 Misc. 487. The form of the authentication certificate must be substanti- ally as prescribed in § 312 of the Real Property Law (§ 261 of former Real Property Law). But a slight variation in name of officer from that in the acknowledg- ment may be passed, — such as a different middle letter, or the lack of one. Knowledge of handwriting. — A county clerk's certificate is not sufficient if it fails to show that the authenticating officer had any knowledge of the handiuriting. But it is good if it states " genuine signature" for that presupposes a comparison of handwritings. A statement that he believes the signature to be genuine is not enough. He must certify either (1) that he is acquainted with the handwriting ; 8 PEACTICAL EEAL ESTATE LAW. or (2) has compared the signature; or (3) that (he knows that) the signature is genuine. Statement of authority.— It was held in Matter of Wilcox's Estate, 1 Misc. 55, 21 N. Y. Supp. 780, that it is insufficient for the certificate to state that "he was duly authorized to take the same." But this is too technical. It may be implied from such a positive statement that it means to be eecoedbd in that state. A deputy county clerk may make the certificate because the act is only ministerial, — not judicial. Lynch v. Livingston, 6 N. Y. 422, 431. But in such a case the deputy or assistant must sign the name of the clerk hy himself as deputy or assistant. But he may sign in his 'own name where the clerk's name is in the body of the certificate. WnElSr THERE IS MOEB THAN ONE ACKNOWLEDGMENT to be Certified, even though all are taken by thh notary on the same day, each one re- quires a separate clerk's certificate (unless the certificate uses the plural nouns; which it never does). This follows from the literal read- ing of Beal Property Law, § 310. An acknowledgment taken in Baltimore oe St. LottiSj authen- ticated by the clerk of either city is sufficient for record here although our Real Property Law provides for a certificate by the clerk of a court of the county. Neither city is in. a county, but both cities are prac- tically counties. L. 1905, ch. 377, validates the records of all instruments prior to Jan. 1, 1900, where the acknowledgments were taken by notaries or other officers in other counties of this state without county clerk 's certificates. This act is now incorporated in Real Property Law, § 332, as amended and broadened by L. 1916, ch. 365. Acknowledgment to be recorded in county of acknowledging officer's residence. — It is probable that a clerk's certificate has always been unnecessary under § 310 of the Real Property Law (former Real Property Law, § 259), to an acknowledgment taken within the state if the instrument is recorded in the county where the acknowledging officer resided at the time of taking the acknowledgment. And the Executive Law (L. 1909, ch. 23), § 105, subd. 2, was amended by L. 1913, ch. 208, in effect April 4, ACKNOWLEDGMENTS. 9 1913, to allow notaries to take acknowledgments in any part of the state for record in the counties where they reside, also in those where they have filed certificates of appointment, without requiring any county clerk's certificates. An authentication certificate by the judge of a court in Vermont, instead of by the cleek, is insufficient. Under § 21 of the Executive Law, the deputy Secretary of State and the second deputy Secretary of State can certify to the appointr ment of commissioners outside of the state. 3. Before clerk of surrogate's court. Statutes. — L. 1884, ch. 309, as amended by L. 1900, ch- 510, in effect Apeil 18, 1900, authorized "a cleek of the sueeogate's couET " to take acknowledgments of deeds. No certification is necessary. This act was repealed and the same provision was incorporated in § 2481 of Code of Civil Procedure in the shape of sub d. 12, by L. 1909, ch. 65, and was repealed by L. 1914, ch. 443, in effect Sept. 1, 1914. By § 2502, subd. 5 of Code of Civil Procedure, as added by L. 1914, ch. 443, in effect Sept. 1, 1914, the clerk and deputy cleek of the surrogate's court mcty take acknowledgments of deeds with the same force and effect as if taken by tihe country judge. No certification is necessary. 4. Before Commissioners of Deeds. In towns. — Commissioners of deeds must reside in the towns for which they are appointed; but may act at any place within the county. 1 R. S., 102, § 13. Commissioners of deeds of any city or county may take acknowledgments of deeds. 1 R. S., 756, § 4, subd. 1. The office of town commissioner of deeds was abolished; and his powers and duties devolved on justices of the peace. L. 1840, ch. 238, in effect May 7, 1840. , In cities. — Commissioners of deeds in cities can take acknowl- 10 PEACTICAL REAL ESTATE LAW. edgments of deeds within the cities where they reside and for which they are appointed. 1 R. S., 756, I 4, subd. 1 ; former Real Property Law, § 248. Real Property Law, § 298. If recorded outside of the county where it is taken, such an acknowledgment must have a county clerk's certificate. I. R. S., 759, § 18; former Real Property Law, § 259. Real Property Law, § 310. The common councils of cities were authorized to appoint commissioners of deeds by L. 1848, ch. 75 (repealed by Executive Law, L. 1892, ch. 683). The former Executive Law, L. 1892, ch. 683, § 86, provides for the appointment of commissioners of deeds by the common councils of cities; and authorizes them to take acknowledgments of all written instruments. This section was immaterially amended by L. 1894, ch. 88, and is now incorporated in the Executive Law (L. 1909, ch. 23), as § 106 thereof. Executive Law (L. 1909, ch. 23), § 106. Commissioners of deeds in cities shall be appointed by the common councils thereof ; and the city clerks must file certificates of their appoint- ments with the county clerks of their counties. Authorized to take proof and acknowledgment of all written instruments. § 108. Every such commissioner shall have authority, within the district for which he is appointed, to take the acknowledg- ment or proof of a written instrument except a promissory note, bill of exchange, or a will, to be read in evidence or recorded in the state. 5. Before commissioners of deeds of New York city. The certification of acknowledgments taken by commission- ers of deeds in the city of New York since January 1, 1898, for record in counties outside of said city. — The Greater New York charter (L. 1897, ch. 378), § 58, simply provides for the appoint- ment of commissioners of deeds by the board of aldermen. These commissioners of course had power to take acknowledgments of deeds anywhere within the city of New York and under the Real Property Law certificates were required from the clerks of the counties where they resided, for record outside of the city. ACKNOWLEDGMENTS. 11 Said § 58 was amended by L. 1901, ch. 466, and again by L. 1904, ch. 413, both amendments containing the provision that any instrument acknowledged before a New York city commis- sioner and certified by the clerk of the county of New York, Kings, Queens or Richmond should be recorded and read in evi- dence in any county in the state without further proof. This was in direct conflict with former Real Property Law, § 259, and with Real Property Law, | 310, both of which sections provided for the authentication of acknowledgments by the clerk of the county where the acknowledging officer resided. In the case of People v. Schneider, Special Term, New York county, N. Y. L. J., February 24, 1911, Mr. Justice Platzek ruled in a mandamus proceeding to compel the county clerk to issue a certificate of authentication, that the city charter provisions above only affected New York city, while the Real Property Law affected the whole state and for recording outside of New York city the latter act must prevail. Bronx county was erected in New York city by L. 1912, ch. 548, and became a legal entity by the election of November, 1912, which ratified its - organization. It did not act as a county, however, until January 1, 1914, therefore, between November, 1912, and January 1, 1914, no commissioner of deeds residing in Bronx county could take an acknowledgment for record outside of New York city unless under L. 1911, ch 196, amending Real Property Law, § 310, a certificate was obtained from some other county in which the commissioner was authorized to act. (This might have been impossible to procure.) By L. 1913, ch. 418, in effect April 30, 1913, § 58 of the New York charter was further amended by providing for the filing of certificates of appointment and registering the signature of a commissioner of deeds with the recording officers of the various counties within the city. Since that time luhere the instrument is acknowledged in the county in which the commissioner resides an authentication certificate from the clerk of that county is sufficient, but if the acknowledgment is taken in another county tiuo certificates are required, one from the county where the commissioner resides and the other from the county where the acknowledgment is taken. Reliance can he placed upon the venue of the acknowledgment as proof of the county in which the acknowledg- 12 PRACTICAL REAL ESTATE LAW. ment is taken and upon the commissioner's statement of Ms residence being correct. Said § 58 of the Greater New York charter was again amended by L. 1915, ch. 607, in effect May 12, 1915, and since that date any county clerk in New York City with whom a commissioner of deeds has filed a certificate of his appointment, can certify to his acknowledgment for recording outside of New York city, no matter where within the city of New York the same has been taken. This act requires each commissioner of deeds to affix to each acknowledgment the date when his term expires and his official number. These last provisions are mandatory and the certificate is not good without them. Greater New York city charter, § 58, was amended as to com- missioners of deeds by L. 1917, ch. 610. County clerk's certificate on acknowledgment by New York city commissioner of deeds. The New York county clerk cannot be compelled to certify to the acknowledgment of a commis- sioner residing in Brooklyn. Real Property Law, § 310, provides that it must be made by the clerk of the couiity where the com- missioner resides. People V. Schneider, N. Y. L. J., Feb. 24, 1911. 6. B^ore consular officers. Statutes. — 1 R. S., 757, § 5. If in France, before the United States consul appointed to reside at Paris; and if in Russia, before the consul appointed to reside at St. Petersburgh. 1 R. S., 757, § 6. If within the United Kingdom of Great Britain and Ireland or the dominions thereunto belonging, before the United States consul appointed to reside at London. 1 R. S., 757, § 7. Under seals of office of the consuls. L. 1863, ch. 246, in effect April 29, 1863. In any foreign country before any vice consul or commercial agent of the United States, resident in any foreign port or country, under his seal of office. All acknowledgments heretofore taken by such officials confirmed if proper in form. Amendment of L. 1888, ch. 246, in effect May 8, 1888, added consul general. ACKNOWLEDGMENTS. 13 L. 1865, ch. 421, amending L. 1863, ch. 246, in effect April 14, 1865. In any foreign country before any vice consul, deputy consul, consular agent, vice consular agent, commercial agent, or vice commercial agent of the United States, resident in any foreign port or country, under seal of his office or consulate ; and all previous acknowledgments taken by such officials confirmed. L. 1883, ch. 80, in effect March 7, 1883. If within the United Kingdom of Great Britain and Ireland, before any United States consul appointed to reside therein. Eeal Property Law, § 301. Without the United States, before (2) A consul general, vice consul general, deputy consul general, vice consul or deputy consul, a consular or vice consular agent, a consul or commercial or vice commercial agent, residing within the country. Former Eeal Property Law, § 250, is the same. Former Eeal Property Law, § 257, as amended by L. 1904, ch. 528. Must be under his seal of office or that of his consulate. Confirms prior acts. Eeal Property Law, § 308, is the same, but confirms acknowl- edgment prior to April 29, 1904. No authentication of any of above required. — An acknowledg- ment by a United States consul requires no authentication by any certificate. (St. John v. Croel, 5 Hill, 573.) And it did not require a seal until 1904. (See ante.) A consular agent is presumed to have resided in the county where he took the acknowledgment. Jordan v. Jnderhill, 91 App. Div. 124, 86 N. Y. Supp. 620. The United States consulate general in China, held a court of record. Newman v. Basch, 89 Misc. 622, 152 N. Y. Supp. 456. 7. By corporations. No particular form of corporate acknowledgment was required by statute prior to the former Eeal Property Law. Pruyne v. Adams Furniture & Mfg. Co., 92 Hun, 314, 36 N. Y. Supp. 361, aff'd 155 N. Y. 629. The form of a corporate acknowledgment was first prescribed 14 PEACTICAL REAL ESTATE LAW. by former Real Property Law, § 258. Now Real Property Law, §309. Prior to the time when the statute prescribed the form, a corporate proof signed by a corporate officer and certified by a notary "sworn to before me this day of /' was good. The proper person to acknowledge a corporate deed is the oflScer who affixed the corporate seal. ILovett Y'. Steam Sawmill Assn., 6 Paige, 54. The form for a corporate acknoivledgment without a seal is: " That said corporation has no seal; that the seal affixed to the foregoing instru- ment is the private seal of the president of said corporation; and was hereto affixed by the board of directors," etc. A COEPOEATE PROOF MUST STATE THE RESIDENCE OF THE OFFICER; but a residence a^ stated in a county or state is insufficient, — in any village, town or city is all right. Prior to the former Real Property Law it was probably necessary for an officer of a corporation to state his residence. It was held in Lovett V. Steam Sawmill Assn., 6 Paige 54, that a corporate officer executing a deed, stands in the character of a " subscribing witness;" and the statute provided that a subscribing luitness should so state. A CORPORATE ACKNOWLEDGMENT WHICH STATES that the Seal Was affixed by order of a resolution duly adopted by said corporation, and that the officer signed his name by a like order, is good. A proof by subscribing witness to a corporate execution was held sufficient in 1828 in Canandarqua Academy v. McKechnie, 90 N. Y. 618. But since former Real Property Law, § 258, this is very doubtful. Under Real Property Law, § 309, if the execution and recital give name of the corporation the acknowledgment need not do so. 8. Before Court Clerks. Statutes.— Former Real Property Law, § 248 (Real Property Law, § 298). Within the district wherein such officer is author- ized to perform official duties, "before a . . . clerk, deputy clerk, or special deputy clerk of a court." The certificate requires no authentication. An acknowledgment before the clerk of the city court of Poughkeepsie ACKNOWLEDGMENTS. 15 is good and no certification is necessary. Under the Beat Property Law it is not necessary that the court be a court of becokd. 9. Before diplomatic oflScers. Statutes. — 1 E. S., 757, § 5. If in any state or kingdom in Europe or North, or Soutli America, before any minister pleni- potentiary, or minister extraordinary, or cliarge d'affaires of the United States, resident and accredited within such state or kingdom. 1 R. S., 757, § 5. Such proof or acknowledgment duly certified under hand and seal of office shall have same force as if taken before a New York supreme court justice. No authentication is required. St. Jahn V. Croel, 5 Hill, 573. L. 1895, ch. 793, in effect May 27, 1895, amended E. S., pt. 2, ch. 3, § 5, by adding the word ambassador. Former Eeal Property Law, § 250, in effect Oct. 1, 1896. Without the United States before an ambassador, minister pleni- potentiary, minister extraordinary, minister resident, or charge d 'affairs of the United States. Amended by L. 1899, ch. 542, confirming all acts of above officials performed before May 12, 1896, provided the certificate is in proper form. Subd. 2 amended by L. 1904, ch. 528, in effect April 29, 1904, by adding "or secretary of legation at the post, port, place or within the limits of his legation." Eeal Property Law, § 301, is same as above as amended. Former Eeal Property Law, § 257, provides that the seal of office of all the above officials must be attached, except that it omits the word ambassadors. Secretary of legation was added by L. 1904, ch. 528. Real Property Law, § 308, requires seals of office on certificates of all above officials, including ambassadors. 10. Disqualification. Relationship. — The justice of the peace who took the acknowl- edgment, was the son of the grantor, and the husband of the 16 PRACTICAL REAL ESTATE LAW. grantee. Held, that he was not disqualified by reason of his relationship to the parties. Remington Paper Co. v. O'Dougherty, 81 N. Y. 474. A proof by the ivife of a grantee as subscribing witness to the grantor's signature, she not being a party, is good. A commissioner of deeds in taking an acknowledgment of the execution of a deed, acts ministerially and not judicially; and it is not, therefore, any valid objection to his act, that he is related to the parties. Lynoli V. Livingston, 8 Barb. 463, aff'd 6 N. Y. 422. A party to the record is disqualified from taking the acknowl- edgment of an instrument. Armstrong v. Combs, 15 App. Div. 246, 44 N. Y. Supp. 171. And he is also disqualified from proving, as subscribing wit- ness, the execution of a co-grantor. Code of Civil Procedure, § 936. Aw ATTOENET IN FACT^ executing, is such a party. One of the two attorneys in fact appointed by the same instrument, but having several powers, can, as notary, take the achnowledgment of the other who alone acts. NOTAKT AlSr OFFICER^ EMPLOYEE, STOCKHOLDEKj ETC., OF COEPOKA- TioiT. — The acknmvledgment of an instrument by a corporate party thereto, before a notary who was an officer of the corporation was bad practice at least, prior to April 19, 1913. B^y L. 1913, ch. 334, in effect April 19, 1913, the Executive Law {L. 1909, ch. 23) was amended by adding § 105 a, allowing a notary who is a stockholder, officer or employee of a corporation to take the acknowledgment to any instnir ment to or by the corporation; but not if that notary be in any way a party to the execution of the instrument. An incorporator of a railroad company has no power, in his capacity as notary public, to take the acknowledgment of another incorporator to the certificate of incorporation; and an acknowledgment so taken is a nullity. People ex rel. Erie R. Co. v. Railroad Com'rs, 105 App. Div. 273, 93 N. Y. Supp. 584. An individual co-grantor with a corporation, who is also the ACKNOWLEDGMENTS. 17 president of the corporation, can prove the seal of the corpora- tion. Eeal Property Law, § 309, calls a corporate proof, an acknowledgment and the president is the proper officer to acknowledge for a corporation. A MORTGAGOK is disqualified from taking acknowledgments, as notary, to the satisfaction piece thereof even after he has conveyed the property, because he is on the bond. The administering of an oath by telephone is entirely illegal and unauthorized; and the notary doing it is guilty of a mis- demeanor. Matter of Napolis, 169 App. Div. 469, 155 N. Y. Supp. 416. 11. Before federal judges. Statutes. — A justice of the United States supreme court may take an acknowledgment anywhere in the United States (Real Property Law, § 299). , And his certificate requires no authentication. A judge of the United States circuit court of appeals. United States circuit court, or United States district court, may take an acknowledgment anywhere within the jurisdiction of his court (Eeal Property Law, § 299). And no authentication of his certificate is necessary. A United States commissionee is without power to take acknowl- edgmenis in this state. 12. In Canada. Statute^. — L. 1857, ch. 788, authorizing appointment of New York commissioners in Canada. (Repealed by L. 1875, ch. 136.) L. 1870, ch. 208. In Canada before a judge of any court of record with clerk's certificate; and before the mayor of any city under his seal of office. Former Eeal Property Law, § 250, subd. 5. In Canada before a judge of a court of record; or before any officer of such dominion authorized by the laws thereof to take acknowledg- ments or proof of deeds to be recorded therein. Amended by L. 1908, ch. 61, to cover any officer "of a province or territory" of Canada. Now Real Property Law, § 301, subd. 5. 2 18 PEACTICAL REAL ESTATE LAW. Authentication as prescribed by former Real Property Law, § 260, subd. 3, and Real Property Law, § 311, subd. 2, as amended by L. 1913, cb. 209. Same as required for acknowledgment taken in another state. 13. In District of Columbia. Statutes.— By New York commissioner. L. 1840, ch. 290. Certificate of secretary of state first required; and must state day and city, town or county. L. 1850, ch. 270. Former Real Property Law, § 249, as amended by L. 1908, ch. 61, which added subd. 6. Any officer of the District of Columbia authorized by the laws of the United States to take acknowledgments of deeds to be recorded in said district. Now Real Property Law, § 299, subd. 6. An acknowledgment can novj be tahen hefore a notary public in the District of Columbia the same as here; but the certificate required authentication by the cleric of any court in the District. Real Property Law, § 311, subd. 3, concerning authentication, provides that the District of Columbia shall be included therein as a county. 14. In German Empire. Statutes. — L. 1904, ch. 690, amending former Real Property Law, § 250, by adding subd. 8. If in the empire of Germany, before a judge of a court of record, under seal of the court, or before a notary public under his seal of office and the seal of the city or town in which he resides. Now Real Property Law, § 301, subd. 8. L. 1912, ch. 70, adding subd. 9, Real Property Law, § 301. If within the empire of Austria, kingdom of Hungary, and a province of the monarchy of Austria Hungary, before a judge or clerk of a court of- record, under seal of the court, or before an imperial royal notary, or royal notary, under seal of his office, and of the city or town in which he resides. 15, In Great Britain. Statutes. — ^L. 1858, ch. 308. Governor to appoint commis- sioners in London, Liverpool and Glasgow in Great Britain, to ACKNOWLEDGMENTS. 19 take acknowledgments. But must have certificate of secretary of state before recording. (Repealed by L. 1875, cb. 136.) L. 1858, cb. 308, as amended by L. 1862, ch. 283. Governor authorized to appoint commissioners to take acknowledgments in Dublin, Belfast, Cork and Galway in Ireland. (Repealed by L. 1875, ch. 136.) L. 1883, cb. 80. In Great Britain or dominions, may be taken before a mayor, provost or chief magistrate of any city or town ; or before a United States consul. Former Real Property Law, § 250, subd. 6. If within the United Kingdom of Great Britain and Ireland or dominions, the mayor, provost or other chief magistrate of a city or town. Former Real Property Law, § 250, subd. 6, as amended by L. 1903, ch. 98, by adding at the end : ' ' Under his hand and the seal of such city or town. ' ' Now Real Property Law, § 301, subd. 6. No authentication is required for the preceding. L. 1901, ch. 611, in effect April 27, 1901. An acknowledgment may also be taken by a notary public in Great Britain. No authentication is necessary. But for safety such a certificate ought to he under the official seal of the notary. This act was repealed as to notaries by L. 1903, ch. 98, in effect Sept. 1, 1903. 16. In New Jersey. Before what officers; — ^In the state of New Jersey, an acknowl- edgment of a deed can be taken before the chancellor, commis- sioners of deeds, justices of the supreme court, masters in chancery and judges of the court of common pileas; but not before a notary public. A deed acknowledged before a notary public in New Jersey, is not entitled to record here even though it has a clerk 's certificate certifying that he was entitled to take it; because it is untrue, as it was not taken before an authorized oflScer as required by our statutes. Lemmer v. Morison, 89 Hun, 277. A New Jersey notary public cannot take an acknowledgment of a deed. Partridge v. Mechanics' National Bank of Burlington, 77 N. J. Eq. 208, 77 A, 410, aff'd 78 N. J. Eq. 297. 20 PEACTICAL EEAL ESTATE LAW. But by statute, L. of N. J., 1916, ch. 145, notaries public were authorized to take acknowledgments of deeds in New Jersey. Attomey-at-law. — May be taken in New Jersey by an attorney- at-law since June 14, 1898. 17. In Norway, Sweden or Denmark. Statutes.— L. 1916, ch. 395, adding subd. 10 to Eeal Property Law, § 301. Provides that an acknowledgment taken in the kingdoms of Norway, Sweden or Denmark, or any of their colonies, including Greenland or Iceland, may be taken before a judge or a clerk of a court of record, or before the mayor or other chief magistrate of a city or town, or before a notary public, a sheriff, or a consular officer of either Norway, Sweden or Denmark accredited to the place in which the acknowledg- ment is taken. 18. In United States Dependencies. Statutes.— Former Keal Property Law, § 249a, as added by L. 1901, ch. 84. In Porto Rico, the Philippine Islands, Cuba, or in any other place over which the United States has, at the time, or exercises, sovereignty, control or a protectorate, before : (1) A judge or clerk of a court of record thereof, acting within his jurisdiction. (2) A mayor or other chief officer of a city, acting in such city. (3) A commissioner appointed by the governor of this state. (4) An officer of the United States regular army or volunteer service of the rank of captain or higher or an officer of the United States navy of rank of lieutenant or higher while on active duty at the place. Certificate of (1), (2) and (3) must have the seal of the court or officer or a statement that the officer has no seal. Certificate of (4) shall state his rank, name of city or other place where taien and the fact that he is on duty there, and shall be authenticated by the secretary of war or navy. Immaterially amended by L. 1906, ch. 398. Now Real Property Law, § 300. ACKNOWLEDGMENTS. 21 An acknowledgment may he taken before a United States consul in Cuba under Real Property Law, § 300, or, one can he taken as in a foreign country under § 301. Cuha is now an independent country except that under the Piatt amendment, the United States can take charge of affairs there in case of serious internal trouble. Acknowledgments in Porto Eico can be taken either under Eeal Property Law, § 299 or § 300. It is a part of the United States and a notary public can take acknoivledgmenis there if the secretary of the island of Porto Rico certifies that such officer is authorized by the laws of Porto Rico to take acknowledgments of deeds. An acknowledgment as follows: State of Canal Zone County of second judicial circuit: taken before the circuit court clerk second judAcial circuit court Zone at Empie Canal Zone, tuitfi the seal of the court, is good under Real Property Law, § 300. 19. Before judges out of state but in United States. Statutes. — 1 R. S., 756, § 4. The cMef justice and associate justices of the supreme court of the United States, district judges of the United States, the judges or justices of the supreme, superior or circuit court of any state or territory within the United States, within their jurisdictions. Former Eeal Property Law, § 249. (1) A judge of the supreme court, of the circuit court of appeals, of the circuit court or the district court of the United States; (2) A judge of the supreme, superior or circuit court of a state. Real Property Law, § 299, is same as preceding. No authentication to any of the above is required. 20. Before justice or judge. Statutes. — 1 E. S., 756, § 4, subd. 1. The chancellor, justices of the supreme court, circuit judges, and judges of the county courts within their counties only. Former Eeal Property Law, § 248, and Real Property Law, § 298. At any place within the state, before a justice of the 22 PRACTICAL EEAL ESTATE LAW. supreme court; or within the district wherein such officer is authorized to perform official duties, before a judge . . . special county judge. No authentication is required. Statutory Construction Law (L. 1892, ch. 677), § 6, and General Construction Law (L. 1909, ch. 27), § 26, provide that the term "judge" shall be construed to mean "every judicial officer authorized, alone or with others, to hold or preside over a court of record. ' ' 21. Before justices of the peace. Statutes.— Eeal Property Law, § 298, authorizes justices of the peace to take acknowledgments of deeds within the districts only where they are authorized to perform their official duties. That is, only in the towns where they are elected. They have, however, power to act anywhere in their eespective cou^^TiES;, derived as follows: By 1 B. S. 102, § 13, commissioners of deeds must reside within the towns for ivhich they are chosen or ap- pointed; hut may execute the duties of their office at any place within the county. By 1 R. 8. 756, § 4, commissioners of deeds may take acknowledgment^ of deeds; hut not outside of the city or county for which each was appointed. By L. 1840, ch. 238, in effect May 7, 1840, the office of commissioner of deeds in toivns was abolished, " and all the powers and duiies of such commissioners shall thereafter he executed hy the justices of the peace in said towns respectively;" and the fees allowed to justices for taking acknowledgments were prescribed. By L. 1915, ch. 190, amending Real Property Law, § 298, justices of the peace were expressly authorized to take acknowl- edgments anywhere within their counties. Former Eeal Property Law, § 259, and Eeal Property Law, § 310. For record outside of the county, certificates of justices must be authenticated by county clerks' certificates. Acts of justices of the peace were confirmed by the following special acts: L. 1886, chs. 23, 210, 461; L. 1890, ch. 569; L. 1892, ch. 569, § 59 (former Town Law); L. 1893, ch. 277; L. 1894, ch. 96; L. 1896, ch. 438; L. 1897, ch. 226; L. 1899, ch. 274; L. 1900, ch. 86; L. 1906, ch. 356; L. 1909, ch. 136; L. 1910, ch. 142; L. 1911, ch. 49; L. 1912, ch. 71. ACKNOWLEDGMENTS. 23 22. By married women. Until the Married Woman's Act of 1848 (ch. 200), a married woman's deed was inoperative unless she acknowledged it in some form. Constantine v. Van Winkle, 2 Hill, 420. A conveyance by a married woman must be acknowledged by certificate annexed to the deed at common law and by 1 R. S., 758, 759, §§ 10, 15; and ber acknowledgment cannot be estab- lished by parol. Elwood V. Klock, 13 Barb. 50. Prior to the Married Woman's Act of 1848 ch. 200, "where the legal estate is in the wife, except in the case of a non-resident of the state, her deed or contract, conveying or agreeing to con- vey such estate, if not acknowledged according to the statute, is a mere nullity, in equity as well as at law. And where she joins her husband in a contract to convey such estate, if she does not acknowledge the contract in the manner specified in the statute in relation to conveyances by married women, it must be con- sidered, in this court as well as in courts of law, the agreement of the husband only." Knowles v. MoCamly, 10 Paige, 342. A married woman who was a resident of some other state, and who executed the deed and made the acknowledgment in that state, was not required to undergo a separate examination; hut if she was a resident of the state of New York, her temporary absence therefrom at the time of executing and acknowledging the deed, did not dispense with the necessity for the separate examination. Separate acknowledgment was unnecessary when the woman was, at the time, actually separated from her husband by judicial decree. Delafield v. Brady, 38 Hun, 404, aff'd 108 N. Y. 524. The certificate of acknowledgment was required to state that she acknowledged on a private examination apart from her husband; and that she executed freely and without any fear or compulsion of her bnsband. Bradley v. Walker, 138 N. Y. 291, 33 N. E. 1079. 24 PEACTICAL REAL ESTATE LAW. A certificate of acknowledgment by a married woman, stating that on an examination before the officer "separate and apart from her husband, ' ' she acknowledged the execution of the same "without fear or compulsion from him," is a sufficient com- pliance with the statute requiring the officer to certify that on "a private examination apart from her husband, she executed the conveyance freely and without any fear or compulsion of her husband." Dennis v. Tarpenny, 20 Barb. 371. No separate acknowledgment of a conveyance of a married woman's separate estate was required after May 7, 1848. Allen V. Reynolds, 36 Super. (4 J. & S.), 297. Peioe to L. 1879, ch. 249. — Such separate acknowledgment was necessary to har her dower, however, until May 5, 1879, when it was abolished hy L. 1879, ch. 249. Prior to 1848 a married woman could not convey hy power of attorney; and prior to 1879, she could not release her dower hy an attorney, hecause the required private examina- tion could not he made. Neither could her execution he proved by a subscribing witness until May 15, 1880, when her incapacity was finally removed hy L. 1880, ch. 300. 23. Before mayor or recorder of city. Statutes.— 1 E. S., 756, § 4, subd. 1, former Real Property Law, § 248, and Real Property Law, § 298. His certificate needs no authentication. 24. Before New York commissioners out of state. Statutes. — Acknowledgment by New York commissioners residing in other states were first provided for by L. 1840, ch. 290. No certificate of the secretary of state was required, until L. 1850, ch. 270, in effect July 1, 1850. Former Real Prop- erty Law, § 256, required such a certificate, and so does § 311 of the present Real Property Law. For acts authorizing their appointment in other states, terri- tories and foreign countries, see former Executive Law, L. 1892, cl*. 683, § 7, as amended by L. 1907, ch. 142. (Now Executive Law, L. 1909, ch. 23, § 107.) ACKNOWLEDGMENTS. 25 If the certificate of the secretary of state is not on an acknowl- edgment taken by such an official, the title is unmarketable. Williamson v. Banning, 86 Hun, 203, 33 N. Y. Supp. 259. The secretary of state's certificate must state that the com- missioner was duly appointed to act within a certain city or county of a certain state; and that he (the secretary) has com- pared his signature and the impression of his seal with the signature^ and impression deposited with his office and that he verily believes both to be genuine. Real Property Law, § 312. Such a commissioner is appointed for a particular city or county in which he resides or has a place of business in any other state of the United States; and for a city in a foreign country. By L. 1904, ch. 84, such commissioner^ may also be appointed in Porto Eico and the Philippines, or in any other place over which the United States has or exercises control, sovereignty or a protectorate. Such a person so appointed is required to have a seal, and must file with the secretary of state a copy of his seal and his signature. He must affix his seal to his certificate. • Former Real Property Law. § 257, and Real Property Law, § 308. If taken within the United States, the certificate of acknowl- edgment must "state the day on which, and the town and county or the city in which the same was taken. ' ' Former Real Property Law, § 356, and Real Property Law, § 307. The EESiDENCE of t^ie commissioner need not he stated. Nor is it necessary to state the place of talcing in the certificate^ if it is in THE VENUE. Acknowledgments may also be taken without the United States by persons specially authorized by a commissioner under the seal of the supreme court. Former Real Property Law, § 250, subd. 4, and Real Property Law, § 301, subd. 4. 25. Before notaries public. Statutes. — ^First authorized to take acknowledgments of 26 PEACTIOAL REAL ESTATE LAW. deeds (L. 1859, ch. 360; L. 1863, ch. 508). See also former Real Property Law, § 248, and Eeal Property Law, § 298. A notary public was authorized to take acknowledgments in the British dominions without authentication by L. 1901, ch. 611, in effect April 27, 1901, amending former Real Property Law, § 250. But this provision was repealed by L. 1903, ch. 98. By L. 1901, ch. 657, in effect May 3, 1901, amending former Executive Law (L. 1909, ch. 23), § 82, a notary can by filing a certificate act in any county of the state. L. 1907, ch. 559, amending former Executive Law (L. 1909, ch. 23), § 83a, requires notaries to file certificates of their appointment in the registers * offices. A notary public is not a state officer but is a public officer. Opinions of Atty. Gen., 1911, p. 376. He cannot delegate his official authority to another. Sheldon v. Benham, 4 Hill, 129. Compelling correction of certificate. — ^Mandamus will lie to compel a notary who has made a defective certificate of acknowl- edgement to correct it. People ex rel. Sayville S. B. Co. v. Kempner, 49 App. Div. 121, 63 N. Y. Supp. 199. Afteb a notary's teem has expieed he can at any time certify to an act performed hy him at a time when he was qualified to act, — such as correcting an old certificate of achnowledgment, or making a new one. In New Jersey. — Notaries public could not take acknowledg- ments of deeds in the state of New Jersey. But by a special statute, L. 1916, ch. 145, of New Jersey they can do so since April 1, 1916. In Disteiot of Coltjmbia. — They can now take acknowledgment in the District of Columbia. But an acknowledgment taken by a notary who has failed to file his autograph signature in the register's office as required by above act is irregular only and not invalid. Matter of Townsend, 195 N. Y. 214, 223, 88 N. E. 41. ACKNOWLEDGMENTS. 27 An acknowledgment taken by a notary in another and unau- thorized, capacity, is bad. There is no presumption that he is acting in his potent and not his impotent capacity, when he states his office. Partridge v. Mechanics' National Bank of Burlington, 77 N. J. Eq. 208, 77 A. 410, aff'd 78 N. J; Eq. 297. The authenticatiott. — Formerly endless confusion was caused hy the fact that both former Real Property Law, § 259 and Real Property Law, § 310, required a, county clerh's certificate from the county in which the notary kesided, — because it was extremely difficult to deter- mine in which county his residence was. This was ended, however, hy L. 1911, ch. 196, which provided for a certificate from the clerh of the county where the notary was authorized to act, and cured all former certificates. L. 1894, ch. 88, amending former Executive Law (L. 1892, ch. 683), § 85, provided that a county clerk's certificate was unnecessary for recording in the county where an autograph signature and certificate were filed. But this must not be con- fused with recording in a notary's home county an acknowledg- ment taken in another county where he had a certificate filed. L. 1913, ch. 208, in effect April 4, 1913, amended the Executive Law (L. 1909, ch. 23), § 105, subd. 2, by allowing acknowledg- ments taken anywhere in the state to be recorded without authentication in the notary's home county or in any county where he has filed a certificate of his appointment, L. 1872, ch. 703. Notaries for New York and Kings counties can act in either county. But for record in an outside county, a county clerk's certificate from the county where the notary is appointed, is necessary. Eepealed by former Executive Law (L. 1892, ch. 683). A notary can file his certificate in another county under Executive Law (L. 1909, ch. 23), § 102, by mail without per- sonally appearing at the county clerk 's office there. People ex rel. Horsey v. Ganly, 168 App. Div. 853, 154 N. Y. Supp. 371. Special acts of the legislature confirming acts of notaries: L. 1860, ch. 443; L. 1861, ch. 246; L. 1863, ch. 508; L. 1881, ch. 44; L. 1881, ch. 553; L. 1882, ch. 16; L. 1883, ch. 29; L. 1883, 28 PEACTICAL EEAL ESTATE LAW. cli. 230; L. 1884, ch. 304; L. 1885, ch. 63; L. 1886, ch. 448; L. 1900, ch. 71; L. 1902, ck 86; L. 1903, ch. 628; L. 1904, ch. 235; L. 1905, ch. 377; L. 1906, ch. 361; L. 1907, ch. 589; L. 1908, ch. 92; L. 1909, ch. 203; L. 1910, ch. 117; L. 1911, ch. 140; L. 1912, ch. 78; L. 1913, ch. 95; L. 1914, ch. 99; L. 1915, ch. 99; L. 1916, ch. 280; L. 1917, ch. 436; L. 1918, ch. 410; L. 1919, ch. 204. Statutes regarding' notaries since Revised Statutes. — 1 E. S., pt. 1, ch. 5, tit. 1, § 14. Must reside in the cities or counties for which they are appointed, but may execute the duties of their office at any place within the state. L. 1859, ch. 360; L. 1863, ch. 508. Have power to take acknowledgments of deeds. L. 1872, ch. 703. Notaries for New York and Kings counties can act in either county; but county clerk's certificate is required for recording outside. Eepealed by Executive Law (L.1892, ch. 683). L. 1873, ch. 807. Notaries for Kings, Queens, Eichmond, "Westchester, Eockland or New York counties may act in any other of those counties by certificate of appointment and signa- ture. Amendments: L. 1875, ch. 105, to cover notaries thereafter appointed; L. 1875, ch. 458, providing for filing county clerk's certificates of filing copies of appointments and signatures; L. 1880, ch. 234; L. 1883, ch. 140, by adding Orange county; L. 1888, ch. 542. L. 1884, ch. 270. May act in adjoining counties on filing certificates. Contents of county clerk's certificates. Amended by L. 1885, ch. 61. Former Executive Law (L. 1892, ch. 683), § 82. Acting in more than one county. Amendments: L. 1893, ch. 248; L. 1894, ch. 88; L. 1901, ch. 657; L. 1907, ch. 207, adding § 83a, providing for filing certificates in register's office. Amended by L. 1907, ch. 559. Executive Law (L. 1909, ch. 23), § 102. May act in any county on filing certificate. § 105. Official seal not necessary. Amended by L. 1911, ch. 668; L. 1913, ch. 208, may take acknowledgments anywhere in state for record in his county; L. 1913, ch. 248, notaries in Bronx county. ACKNOWLEDaMENTS. 29 L. 1913, ck 334. Adding § 105a to Executive Law (L. 1909, ch. 23). A notary (not a party to the instrument) who is a stockholder, director, officer or employee of a bank or other corporation may take acknowledgments of any party to an instrument • executed to or by such corporation, or administer an oath to any other stockholder, director, officer, employee or agent of such corporation. Amended by L. 1914, ch. 410, in effect April 17, 1914, confirm- ing all such acts of notaries heretofore taken. 26. Before other officers out of state but in United States. Statutes. — ^L. 1845, ch. 109. Before the mayor of any city in United States as valid as if before a justice of the supreme court. Former Real Property Law, § 249, and Real Property Law, § 299. (3) A mayor of a city. No authentication is required L. 1848, ch. 195, in effect April 7, 1848. By any person residing within any other state or territory of the United States, before any officer of such state or territory authorized by the laws thereof to take the proof and acknowledgment of deeds. § 2. To be read in evidence or recorded, must have certificate of the clerk or register of county in which acknowledging officer resides, under hand and seal, specifying that such officer was duly authorized to take the acknowledgments, and that he is well acquainted with his handwriting and verily believes the signature is genuine. Amended by L. 1853, ch. 303, in effect June 4, 1853, by adding "recorder or a prothonotary. " (Repealed by L. 1856, ch. 61.) Amended by L. 1854, ch. Ill, in effect April 1, 1854, by adding "clerk." Amended by L. 1856, ch. 61, in effect March 28, 1856, requiring authentication by the clerk, register, recorder or a prothonotary of the county in which such officer resides, or of the county or district court, or court of common pleas thereof. § 1, amended by L. 1892, ch. 208, in effect April 2, 1892, by omitting word "residing" and adding the word "being." § 1, amended by L. 1893, ch. 123, in effect March 10, 1893, immaterially. 30 PRACTICAL REAL ESTATE LAW. § 2, amended by L. 1894, ch. 729, in effect May 21, 1894, by adding: under name and official seal of the secretary of state. Former Real Property Law, § 249, subd. 5. Any officer of the state in which the acknowledgment is taken, authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein. Amended by L. 1903, ch. 419. Amended by L. 1908, ch. 61, in effect March 26, 1908, by adding the words "or territory" after the word state. Now Real Property Law, § 299, subd. 5. Statutes, authentication.— Former Real Property Law, § 260, subd. 3. By the secretary of state of the state, or the clerk, register, recorder or prothonotary of the county in which the officer making the original certificate resided when the certifi- cate was made, or by the clerk of any court of the county having by law a seal. Amended by L. 1905, ch. 329, confirming authentication acts of any secretary of state since Oct. 1, 1896. Amended by L. 1907, ch. 633. Amended by L. 1908, ch. 136, by adding the words "city or parish" twice. Now Real Property Law, § 311, subd. 3. Amended by L. 1913, ch. 209, in effect April 4, 1913, by omitting provision about "resided" and adding the words "in which the certificate purports to be made." Also confirming all previous authentication certificates. 27. Place of taking. Presumption acknowledgment taken within officer's jurisdic- tion. — Where a conveyance is acknowledged before an author- ized officer, it will be presumed that such acknowledgment was taken within the limits of his jurisdiction; for the legal pre- sumption is in favor of the acts of public officers where nothing appears warranting a different conclusion. People V. Snyder, 41 N. Y. 397. When the certificate of the notary states one place and the witness another, it is a question for the jury. Rogers v. Pell, 154 N. Y. 518 18 N. E. 7.5. ACKNOWLEDGMENTS. 31 Befoee United States consul. — The venue of an acknowledgment taken before a United States consul was : State of Wurtemherg, county of Stuttgart, It should have been Grand Duchy of Wurtemherg, city of Stuttgart. But there was no doubt about the place intended, and the acknowledgment was good. 28. Before police or city magistrate. A police magistrate of the city of New York cannot take acknowledgments of deeds. Neither can a police justice of a village under General Village Law (L. 1909, ch. 64). Tully V. Lewitz, 50 Misc. 350, 355, 98 N. Y. Supp. 829. Code of Civil Procedure, § 842, does not apply to acknowledg- ments. But a justice of the municipal court of the city of New York can take them with the like effect as justices of courts of record. No county clerk's certificate is necessary. Oreater New York Charter (L. 1897, oh. 378, as re-enacted by L. 1901, oh. 466), § 1.379. Municipal Court Act (L. 1902, ch. 580), § 10. Municipal Court Code (L. 1915, ch. 279), § 2. 29. Proof by subscribing witness. A proof by subscribing witness which fails to state the resi- dence of the witness is fatally defective, and the deed is not entitled to be recorded. A title coming through such a deed is not marketable, although the execution thereof is satisfactorily proved by parol Morris v. Keyes, 1 Hill, 540, and Clark v. Nixon, 5 Hill, 36, hold that a deed improperly recorded cannot he, read in evidence. Irving V. Campbell, 121 N. Y. 353, 24 N. E. 821. A proof by subscribing witness which stated his residence as ' ' City of Bergen, state of , " was held sufficient, even after Bergen was consolidated with Jersey City. In this case the grantor resided in the state of New Jersey; which fact had a bearing on the decision. Heaton v. Griswold, 70 Misc. 326, 128 N. Y. Supp. 749. 32 PEACTICAL EEAL ESTATE LAW. Subscribing witness out of jurisdiction. — " Where the sub- scribing witness to a deed or other written instrument is out of the jurisdiction of the court, proof of his handwriting is suf- ficient evidence of the execution of the deed or instrument, without any proof of the handwriting of the parties therein named. ' ' People V. Rowiand, 5 Barb. 449. But this does not avail for curing the record, unleiss the original in- strument is produced and proved in court in an action to which all of the persons in interest are parties. Proof of instrument subscribed in presence of witness. — In a proof by subscribing witness, it is necessary to show that the instrument was signed in the presence of the witness. Schaflfer t. Emmons, 103 App. Div. 399, 92 N. Y. Supp. 993. No AGE LIMIT IS PBESCEiBED for a Subscribing witness to prove the execution of a deed; except that of properly understanding the nature of the act. Seventeen is old enough. 30. By special guardians. FoLiowiNG IS A FORM of acknowledgment by the special guardian of an infant: State of New York, County of , ss.: On this day of before me personally came , known to me to be the individual described in and who executed the foregoing instrument; and to me known to be the special guardian of , the individual described in and who by his said special guardian executed the same; and the said special guardian acknowledged that he executed the said instrument as the act and deed of said Wheee the special guardian is a cobpoeatiow, its simple form, of corporate acknowledgment is sufficient. ACKNOWLEDGMENTS. 33 31. Sufficiency. The words "the same" refer to the instrument to which the certificate is appended, and sufficiently identify it. iSmitn V. Boyd, 101 N. Y. 472, 5 X. E. 319. Claflin V. Smith, 35 Hun, 372. The incorrect spelling of a name is harmless ^aecause, by the form of the acknowledgment, the notary certifies that the person whose acknowledgment he took was known to him to be the individual described in and who executed the instrument. Veit V. Schwob, 127 App. Div. 171, 111 N. Y. Supp. 286. The woeds " peeson^ op that i^ame " are not equivalent to the word " individual." The words "acknowledgment that . . . executed the same" were held fatally defective because the grantor did not acknowledge that he executed the same. Buell V. Irwin, 24 Mich. 145. The words "personally appeared" do not include "person- ally acquainted. ' ' Carpenter v. Dexter, 8 Wallace, 513. The words "to me known" without the word "personally" are sufficient because the words used necessarily imply personal knowledge. Todd V. Jones, 22 la. 146 See 14 Abb. N. C. 454 (note). An acknowledgment omitting the words "to me known," is fatally defective. Moran v. Stader, 52 Misc. 385, 103 X. Y. Supp. 175. The words "to me known" were omitted from an acknowledg- ment. In a specific performance action the notary testified that he did know the grantors and that they properly acknowl- edged so to him. On this testimony and on proof of undisturbed possession by the grantees for over twenty years, the court passed the title. Button V. Webber, 60 Super. 28 J. & S. 247, 17 N. Y. Supp. 463, aff'd 137 N. Y. 615. 3 34 PRACTICAL REAL ESTATE LAW. A title made through an acknowledgment which omits the words "known to me to be the individual described in and who executed," is bad, even though it is only in a power of attorney- used in conveying. Paolillo V. Faber, 56 App. Div. 241, 67 N. Y. Supp. 638. Deed witnessed. — No acknowledgment is necessary to pass title if the deed is witnessed; though unless acknowledged, it cannot be recorded. Fryer \. Rockefeller, 63 N. Y. 268. The words "within named" are not equivalent to "described in and who executed, ' ' though they might cover ' ' described in. ' ' Gross V. Rowley, 147 App. Div. 529, 132 N. Y. Supp. 541. Freedman v. Oppenheim, 80 App. Div. 487, 81 N. Y. Supp. 110. The woeds "above described" are equivalent to "described in" the instrument. An acknowledgment without the words "described in" is defective. The fact that the parties executing are of the same names as in the body of the instrument, is not enough. Gross V. Rowley, 147 App. Div. 529, 132 N. Y. Supp. 541. The statutory requirements for a certificate of acknowledg- ment have been practically the same since the passage of L. 1813, ch. 97. A certificate of acknowledgment made since that time which complies with the statute except that it omits the words "and who executed" is good. The acknowledging officer can only certify that the party was known to him to be the indi- vidual who executed the deed, from his acknowledgment that he had done so. Hunt V. Johnson, 19 N. Y. 279. By telephone. — Where there was no fraud, an acknowledg- ment cannot be impeached by showing that it was taken through a telephone. Banning v. Banning, 80 Cal. 271. See note on telephone evidence in 31 Abb. N. C. 207-210. Failure of notary to file signature. — An acknowledgment taken by a notary who has failed to file his autograph signa- ACKNOWLEDGMENTS. 35 ture in the register's ofifice as required by L. 1907, ch. 599, § 1, is irregular only and not invalid. Matter of Townsend, 195 N. Y. 214, 88 N. E. 41. An acknowledgment by a husband and wife proper in form, but at the end reading that they acknowledge that he executed the same, is BAD AS TO THE WIFE, if she had an\y interest in the property. The USE of the woed she where he should have been used is good. The words "individual in" omitting the word "describes" makes the acknowledgment defective under the authority of Freedman v. Oppenheim, 80 App. Div. 487, 81 N. Y. Supp. 110. A mere introduction is sufficient to enable an officer to take an acknowledgment if he is satisfied with that. Jones V. Bach, 54 Barb. 134, rev'g 48 Barb. 668. The words " whose name is subscribed " are not equivalent to " described in and who executed." Where the name of the person acknowledging is left blank^ and he is not described in any other way (perfect form except that tihe space for the name is not filled in) the certificate is defective; because the notary fails to certify who appeared before him^ etc. ■ The words "I am satisfied" are a sufficient identification by the notary instead of " to me known. ' ' Rogers v. Pell, 47 App. Div. 240, 62 N. Y. Supp. 92, aff'd 168 N. Y. 568, 89 Hun, 159, 35 N. Y. Supp. 17, rev'd on ano. ground 154 N. Y. 518. The words "signed, sealed and delivered the same" are equivalent to certifying that the party had executed the deed. Hobson V. Kissam & Co., 8 Ala. 357. Jacoway v. Gault, 20 Ark. 190; 73 Am. Dec. 494. See "Cyc," vol. 1, p. 591, par. 45. Acknowledgment without words "described in" is defective. Freedman v. Oppenheim, 80 App. Div. 487, 81 N. Y. Supp. 110. Paolillo v. Faber, 56 App. Div. 241, 67 N. Y. Suipp. 638. Carolan v. Yoran, 104 App. Div. 488, 93 N. Y. Supp. 935, aff'd 186 N. Y. 575, 79 N. E. 1102. Gross V. Rowley, 147 A. D. 529, 132 N. Y. Supp. 541. New Jersey form. — "Who I am satisfied are the grantors mentioned in the within indenture," etc., is the New Jersey form; and is not sufficient in New York state. Fryer v. Rockefeller, 63 N. Y. 268. 36 PRACTICAL REAL ESTATE LAW. Connecticut form.— An acknowledgment (Connecticut form) reading as follows: "Personally appeared before me Robert S. Livingston, signer and sealer of the foregoing instrument and acknowledged tlie same to be his free act and deed before me," is fatally defective. It fails to certify that the party acknowl- edging was known to the notary to be the person described in and who executed the instrument. Miller v. Link, 2 T. & C. 86. The Texas form of acknowledgment: State of , County of , ss.: " Before me (/lere insert name and character of office) on this day personally appeared known to me (or proved to me on oath of ) to he the person whose name is subscribed to the foregoing instrumeni atid aclcnoivledged to me that he executed the same for the purpose and consideration therein expressed. Given under my hand and seal of office this dcuy of A. D. 1909," is not good in New York state. 32. Before surrogate. Statutes. — ^A surrogate was first authorized to take acknowl- edgments of deeds on May 19, 1884, by L. 1884, ch. 309, subd. 1. But subd. 2 of the same act makes all acknowledgments thereto- fore taken by surrogates as valid and effectual as if taken by a county judge. This subdivision is now Code of Civil Procedure, § 2490, subd. 12. A special surrogate is also authorized by former Real Prop- erty Law, § 248, and Real Property Law, § 298. No authentication of the certificate of either surrogate is required, — though each can only act within his county. 33. Taken on Sunday. Judicial proceedings proMbited.— All judicial proceedings are by the common law prohibited on Sunday. Any other acts not forbidden by statute may be performed on that day. story V. Elliot, 8 Cow.. 27. ACKNOWLEDGMENTS. 37 Taking an acknowledgment is not a judicial act, but only ministerial. Lynch v. Livingston, 6 N. Y. 422. Theee is no statute forbidding the taking of an acknowledg- ment on Sunday, therefore one taken on that day is valid. Grantor estopped. — Furthermore the grantor in a deed, by delivering it, would be estopped from questioning the acknowl- edgment under the principles laid down in Mutual Life Ins. Co. V. Corey, 135 N. Y. 326, 31 N. E. 1095. ACREAGE. (See Contract; Description; Surplusage or Shortage in Block.) 38 PRACTICAL REAL ESTATE LAW. ♦ACTION. (See Unknowns.) 1. In general. 2. Abatement and revivor. 3. Amendment of papers. 4. Appeal. 5. Appearance. 6. In chancery. 7. Code. 8. The complaint. 9. CoEts. 10. Court rules. 11. Courts of record. 12. Waiver. 1. In general. The word "action" when used in the Revised Statutes, is intended to designate a proceeding in a court of law; but the word "suit" refers to a proceeding either at law or in equity. Didier v. Davidson, 10 Paige, 515.. Continuance. — Code of Civil Procedure, § 756, provides that in case of transfer of interest, or devolution of liability, the action may be continued by or against the original party unless the court directs otherwise. Hence a bankrupt can prosecute in his own name a suit begun by him before adjudication. Colgan V. Finek, 159 App. Div. 57, 144 N. Y. Supp. 408. After transfer of interest by a party, the action may be continued in the name of the original party. No order of court is necessary; and if the judgment is obtained the title is good. McGean v. Met. El. R. Co., 133 N. Y. 9, 13, 30 N. E. 647. Petitions can only be presented in an existing action or in a matter ov6r which the court has special jurisdiction by act of * See also Bliss' Code of Civil Procedure (6th ed.), and Supplement, 1919; Parsons' Code of Civil Procedure; Fiero on Special Actions (3d ed.), and Sup- plement, 1919; Fiero on Special Proceedings (3d ed.), and Supplement, 1919. ACTION. 39 the legislature, or other special authority. Therefore the court cannot restore the lien of a canceled mortgage on a petition only. Matter of Coss, 144 App. Div. 832, 129 N. Y. Supp. 425, app. dis. 204 N. Y. 662. Filing' is deemed made when the paper is handed to the clerk; and if the clerk refuses to take it, when he should do so, and hands it back, it is nevertheless filed from the time when it was tendered. New York County Nat. Bank v. Wood, 169 App. Div. 817, 153 N. Y. Supp. 860. *2. Abatement and revivor. A cause of action arising out of contract survives the death of the plaintiff. Mere lapse of time will not defeat an applica- tion to revive an action after the death of parties to it. At common law, when a plaintiff died, the action abated, and there was no way to revive it, but in 1848 (Code of Procedure, § 121), the legislature changed this by enacting "No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survives. ' ' Now Code of Civil Procedure, § 755. Holsman v. St. John, 90 N. Y. 461. Upon the death of the plaintiff, an action can be revived in the name of the assignee of the administratrix under Code of Civil Procedure, § 757. McNulta V. Huntington, 62 App. Div. 257, 70 N. Y. Supp. 897. The death of a mortgagor after judgment of foreclosure and sale, does not render necessary an application to revive in order to make title, but such revivor is necessary to enforce a deficiency judgment. Hays V. Thomas, 56 N. Y. 531. When an action is continued against an executor of a deceased party, a supplemental summons and complaint is not necessary unless some special reason exists therefor. And then the aggrieved party must apply to the court by motion. Flannery v. Sahagian, 109 App. Div. 321, 95 N. Y. Supp. 643. * See also NOTE, N, Y. Rpts., Bender Annotated Ed., Bk. SO, p. 675. 40 PEACTICAL REAL ESTATE LAW. *3. Amendment of papers. A summons cannot be amended by striking out the name of the sole defendant, and inserting the name of others. New York State Monitor Milk Pan v. Remington Agricultural Works, 89 X. Y. 22. Amendment of pleadings as of course.— When the answer is served by mail, the defendant can amend it within forty days; because Code of Civil Procedure, § 798, gives a party double time to plead when the service is by mail; and § 542 allows such amendment to be made at any time before the time for answer- ing the pleading expires. The two sections construed together require this interpretation. Schlesinger v. Borough Bank, 112 App. Div. 121, 98 N. Y. Supp. 136, Double time was abolished by L. 1910, ch. 577, See footnote 1, p. 1415, sess. 1. 1910. f 4. Appeal. An appeal from an interlocutory judgment of foreclosure and sale does not operate to affect the title of a purchaser in good faith and for value at the sale, but only affects the proceeds; unless a stay is obtained. Code of Civil Procedure, § 1331. Carlson v. Winterson, 146 N. Y. 345, 40 N. E. 995. An appeal to the court of appeals from a final judgment, must be taken within one year after judgment is entered and the judgment role filed. The limitation is absolute, and the tinie begins to run from the entry of the judgment and the filing of the roll ; and no notice of judgment or its entry, is necessary to set the time running. Code of Civil Procedure, § 1325. Marsh v. Pierce, 110 N. Y. 639, 15 Civ. Proe. R. 49. Now within sixty days after service of notice of entry. Code of Civil Procedure, § 1325, as amended by L. 1909, ch. 418. * See also NOTE, N. Y. Epts., Bender Annotated Ed., Bk. 29, p. 799, Bk. 32, p. 1008. Bk. 38, p. 350. t See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 30, p. 478. ACTION. 41 Orders whicli affect mere modes of procedure, do not deprive the party appealing of any substantial rights, and are not appealable to the court of appeals. Van Slyke v. Hyatt, 46 N. Y. 259, 263. So held as to an order of revivor. Arthur v. Griswold, 60 N. Y. 143. Prior to 1895, where the amount involved was less than $500, no appeal could be made to the court of appeals, unless the action was one ' ' affecting the title to real property, or an interest therein. ' ' Code of Procedure, § 191. L. 1874, ch. 322. Nichols V. Voorhis, 74 N. Y. 28. But since L. 1895, cli. 946, there has been no limitation as to amount, upon the right to appeal to the court of appeals. No unanimous decision of the appellate division on a question of fact, can be appealed, Code of Civil Procedure, §§ 191, 1337, except (by custom) by permission. But a decision of the appel- late division wherein one of the sitting justices did not vote, is not unanimous. Vaughan v. Transit Development Co., 222 N. Y. 79, 118 N. E. 219. Appeal to appellate division must be taken within thirty days after service of copy of judgment or order with notice of entry. Code of Civil Procedure, § 1351. ,*5. Appearance. Waiver. — ^An appearance, unless special, waives every defect in service. Allen V. Malcolm, 12 Abb. Pr, N. S. 335. By attorney. — A defendant who is non compos mentis, but of full age and not an idiot from nativity, may appear by attorney. Faulkner v. MoClure, 18 Johns. 134. * See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 16, p. 407, Bk. 18, p. 239, Bk. 22, p. 606, Bk. 28, p. 129, Bk. 29, p. 282. 42 PBACTICAL REAL ESTATE LAW. Li case of an unauthorized appearance by a subsequent incum- brancer, in foreclosure, if the party is a resident of this state, there is no possibility of his setting up collaterally the lack of authority in his attorney to appear in his behalf; but if he is a nonresident, the judgment is foreign as to him, and it is possible for him to litigate collaterally and defensively; and if not cut off he can bring an action to foreclose his lien. United States Life Ins. Co., v. Hellinger, 130 App. Div. 415, 114 N. Y. Supp. 885. Notices of motion, where the attorneys sign their names gen- erally as attorneys for their clients, amount to appearances for all purposes. Baxter v. Arnold, 9 How. Pr. 445. An appearance by an infant under fourteen in a partition action, by applying for a guardian ad litem, is equivalent to a personal service of the summons. Varian v. Stevens, 9 Super. (2 Duer), 635. By nonresident defendant. — The service of a general notice of retainer and a general notice of appearance in an action, by an attorney for a nonresident defendant, is equivalent to a per- sonal service of the summons, and gives the court jurisdiction of the person of such defendant. Reed t. ChiUon, 142 N. Y. 152. 36 N. E. 884. But written authority to the attorney to appear should be with the judgment roll, or the purchaser is not bound to take title to real estate. McKenna v. Duffy, 64 Hun, 597, 19 Supp. 248. Practically, however, it is safe to disregard the filing of such author- ity in all cases except where the title is being taken directly from the referee. The question can only he raised by a purchaser from the referee; and if he does not raise it, the examiner of the title should not do so. Unauthorized appearance. — On direct attack the court will either set aside the judgment, or stay the proceedings and allow the defendant to come in and defend. Where the attorney is ACTION. 43 insolvent, the court will absolutely vacate and set aside the judgment. Vilas V. Plattsburgh & Montreal E. R. Co., 123 N. Y. 440, 483, 25 N. E. 941. 6. In chancery. The service of a subpoena against a husband and wife, on the husband alone, was good as to both, because in law the husband and wife were one person. But when relief was sought out of the separate estate of the wife it was necessary to serve her. Feitner v. Lewis, 119 N. Y. 131, 23 N. E. 296. The court of chancery and the old supreme court were abolished by the Constitution of 1846, from and after the first Monday of July, 1847. The powers and functions of the court of chancery were transferred to the new supreme court, which was given general jurisdiction both in law and equity. But the judges of the old court were continued in office until July 1, 1848, for the purpose of deciding pending cases. Appendix to 3 Barb. Ch. p. 655. Office of vice chancellor of first circuit was established by L. 1831, ch. 16. Any receiver appointed by a court of chancery may take and hold real estate upon such trusts and for such purposes as the court directs; subject to further direction for disposition of same. L. 1845, ch. 112. 7. Code. Code of Procedure, L. 1848, ch. 379, § 2. Distinctions between actions at law and in equity abolished. Code of Remedial Justice (L. 1876, ch. 448, in effect May 1, 1877). Act explaining the Code, L. 1876, ch. 449, followed by an appendix stating the material changes in the law made by the Code. The first fourteen hundred and ninety-five sections of the Code went into effect May 1, 1877 (see § 1496). Code of Civil Procedure.— By L. 1877, chs. 318, 416, in effect May 22, 1877, the name of the Code of Remedial Justice was changed to Code of Civil Procedure, and the operation of the 44 PEACTICAL BEAL ESTATE LAW. first fourteen hundred and ninety-five sections of the Code (except certain sections whicli do not affect real estate) was suspended until Sept. 1, 1877. 8. The complaint. The complaint limits the relief. — In an action for money dam- ages for breach of a contract to take title, specific performance of the contract cannot be decreed although the evidence would warrant it. Towle V. Jones, 24 Super (1 Eob.), 87, 19 Abb. Pr. 449. But a judgment granting relief broader than the prayer of the complaint, is irregular only and not void; so where a fore- closure complaint demanded only that defendants be barred, a regular judgment of foreclosure and sale was granted. Brenen t. North, 7 App. Div. 79, 39 N. Y. Snpp. 975. Because facts appear on the trial which would warrant an action for damages, the court cannot assess them; but if it finds that the plaintiff is not entitled to the relief asked for, it must dismiss the complaint. Gall V. Gall, 17 App. Div. 312, 45 X. Y. Supp. 248. The allegation in a complaint that the plaintiff is now "the sole owner and holder" of the cause of action, is a mere con- clusion of law. Some facts should be stated to show how he became the owner thereof. Thomas v. Desmond, 12 How. Pr. 321. 9. Costs. Costs belong to the party.— It has long been established as the law of this state that costs and allowances in an action or pro- ceeding belong to the party and not to the attorney. Matter of Howell, 215 N. Y. 466, 109 X. E. 572, citing: Mcllvaine v. Stein- son, 90 App. Div. 77, 85 N. Y. Supp. 889; Earley v. Whitney. 106 App. Div. 399, 94 N. Y. Supp. 728; Caccia v. laecke, 123 App. Div. 779 108 N Y. Supp. 542. 10. Court rules sregarded at any O'Reilly v. King. 25 Super. {2 Rob.), 5S7), 28 How. Pr. 408. Court rules may be disregarded at any time by the court in its discretion. ACTION. 45 Force. — Court rules are made pursuant to Code of Civil Pro- cedure, § 17, making them binding upon all the courts ; and they have the force of statute law, and cannot properly be departed from. Smith V. Warringer, 41 Misc. 94, 83 N. Y. Siipp. 655. Matter of Moore, 108 N. Y. 280, 15 N E. 369. A party cannot be deprived of the rights given him by court rules without legislation, or a convention of the judges. People V. Nichols, 18 Hun, 535 ; rev'd on another ground by 79 N. Y. 588. 11. Courts of record. The municipal court of the city of New York, since Sept. 1, 1915, has been a court of record. Durringshofif v. Coates & Co., 93 Misc. 485, 157 N. Y. Supp. 230. 12. Waiver. Public officers. — A person cannot waive a right which belongs to another person. A public officer cannot waive that which may benefit or affect the public; but he may waive the length of a notice. That is a mere detail of practice personal to himself, and of no materiality save to himself alone. Matter of Wood, 111 App. Div. 781, 97 N. Y. Supp. 871. ADJOINING. (See Construction.) ADJOURNMENT. (See aosing Title.) 46 PRACTICAL REAL ESTATE LAW. ♦ADMINISTRATOR. 1. In general. 2. With will annexed. 1. In general. Of living person. — Payment of a debt to him is valid; because the decision of the surrogate as to the fact of the death is not open to attack; and acts of the administrator done in good faith, are valid. Eoderigas \. East River Sav. Inst., 63 N. Y. 460. Purchasing at foreclosure sale. — "An administrator, as such, has no authority or control over the real estate of his intestate, and assumes no obligations in reference to it, and owes no duty to the heirs; he is not, therefore, precluded from purchasing such real estate upon a foreclosure sale, and from holding the same in his own right. ' ' Hollingsworth v. Spaulding, 54 N. Y. 636. Matter of Monroe, 142 N. Y. 484, 490, 37 N. E. 517. An administrator, as such, cannot take title to real estate. — Such title must be taken by a person or corporation designated by the testator. It seems that a conveyance to "the estate of" a person, is void because it is in effect a conveyance to the executors or administrators. Guetal V. Guetal, 113 App. Div. 313, 98 N. Y. Supp. 1002. 2. With will annexed. Appointment. — Can be appointed by the surrogate, without notice, in his discretion. Matter of Estate of Wood, 27 Abb. N. O. 329, 17 N. Y. Supp. 354. Matter of Earnshaw, 196 N. Y. 330, 89 N. E. 825. The surrogate has power to appoint an outside person in con- • See also Heatons' Surrogates' Courta (3d ed.) ; Bliss' Code of Civil Procedure (6th ed.), and Supplement, 1919; Parsons' Code of Civil Procedure; see NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 17, p. 673. ADMINISTRATOR. 47 junction with the person entitled, under Code of Civil Procedure, § 2643. Quintard v. Morgan, 4 Dem. 168. And the death of said person so entitled under § 2643, does not operate to revoke the letters issued to the outsider; and he remains sole administrator, c. t. a., with all the powers of such administrator, including the power to sell and convey real estate directed by the tvill to be sold. Administrator, c. t. a., need not necessarily be appointed to execute a mandatory power of sale in a will. The supreme court may appoint a trustee for that purpose. Faile v. Crawford, 30 App. Div. 536, 52 N. Y. Supp, 353. PowEEs. — An administrator, c. t. a., has no power to lease real estate. It is doubtful if he can ^ive a three year option to purchase, even though he has a power of sale. An administrator, c. t. a., can exercise a mandatory power of sale, but not a discretionary, although Code of Civil Procedure, § 2613, says that he shall have the same power as if he had been named as executor in the will. Ooann v. Culver, 188 N. Y. 9, 80 N. E. 363. He may exercise a powe-r of sale which effects an equitable conversion; for that is really mandatory. Also, it seems, where there is a trust created. Mott V. Ackerman, 92 N. Y. 539. Fish V. Coster, 28 Hun. 64, aff'd 92 N. Y. 627. McGarry v. McMahon, 124 App. Div. 607, 109 N. Y. Supp. 61. He may exercise a power of sale conferred upon executors ' ' or whoever shall execute this my will, ' ' because such a power is not a personal trust on confidence, although it is not manda- tory. Royoe v. Adams, 57 Hun, 415, aff'd 123 K Y. 402, 25 N. E. 386. But he cannot convey good title to land which the testator had contracted to sell before his death, even if the will contained a mandatory power of sale. The power does not look to the conveyance of the naked title to lands, of the beneficial interest in which the testator divested himself in his lifetime. Eoome v. Phillips, 27 N. Y. 357. 48 PEACTICAL EEAL ESTATE LAW. 77(6 72ew Surrogate's Practice Act, L. 1914, ch. 443, in ejfect Sept. 1, 1914, changed the former rule of law that an administrator, c. t. a., could not exercise a discretiotmry or confidential power of sale. Code of Civil Procedure, § 2695, now provides that an administrator, c. t. a., has all the rights and powers and is subject to the same duties, as an executor J and has the same power as an executor to mortgage, lease or sell real estate, unless contrary to the express provisions of the will. This only applies to wills probated since Sept. 1, 1914. ^ADMISSIONS. As evidence. — Admissions of facts made by a party to a suit are evidence against him, even thougli made in a conversation respecting a compromise of the suit. But an offer of compro- mise itself is not admissible, for that "neither admits nor ascertains any debt." ilarvin v. Richmond, 3 Denio, 58. Admissions by one holding title, against his interest, are com- petent evidence against him and against his heirs, and all per- sons claiming title through or under him. Chadwick v. Fonner, 69 N. Y. 404. Xew York Water Co. v. Crow, 110 App. Div. 32, 96 N. Y. Supp. 899, aff'd 187 N. Y. 516. * See also Chamberlayne's Modern Law of Evidence; see NOTE, N. Y. Epts., Uender Annotated Ed., Bk. 24, p. 766, Bk. 29, p. 901. ADOPTION. 49 *ADOPTION. (See Will.) 1. In genecal. 2. Legal status fixed by law of place of adoption. 3. Under transfer tax law. 1. In general. The history of adoption and the right of inheritance under the yarious statutes stated. The right to inherit is determined by the law in force at the time of the foster parent's death. There is no difference in the result between adoptions from institu- tions and those from private persons. United States Trust Co. v. Hoyt, 1.50 App. Div. 621, 135 N. Y. Supp. 849. Adoptions legalized. — Adoptions of children pursuant to any method theretofore practiced in this state were legalized by. L. 1873, ch. 830; but as adoption prior to that time could only have been made under some special statute, the saving clause above referred to applies only to such adoptions; and had no application to methods of adoption not authorized by any statute. (The special statutes are only those allowing certain orphan homes to adopt children.) Carroll v. Collins, 6 App. Div. 106, 40 X. Y. Supp. 54. Simmons v. Burrell, 8 Misc. 388, 28 X. Y. Supp. 625. The right of inheritance is determinable as of the time of the death of the intestate and not as of the date of adoption. A child adopted under L. 1873, ch.- 830, denying it the right of inheritance, acquired such right under L. 1887, ch. 703, the adopted father having died after that latter act was passed. Theobald v. Smith, 103 App. Div. 200, 92 N. Y. Supp. 1019. Rosekrans v. Rosekrans, 163 App. Div. 730, 148 N. Y. Supp. 954. Rights of remaindermen.— The statute, L. 1873, ch. 830, § 10, * See also Fiero on Special Proceedings (3d ed.), and Supplement, 1919; see NOTE, N. X. Rpts., Bender Annotated Ed., Bk. 38, p. 779. 50 PKACTICAL EEAL ESTATE LAW. as amended by L. 1887, ch. 703, provides that an adopted child is not to be deemed the child of the person adopting, so as to defeat the rights of remaindermen. Matter of Hopkins, 102 App. Div. 458, 92 X. Y. Supp. 463. But since L. 1896, ch. 272, an adopted child is an heir at law within the meaning of a deed of trust which conveys real estate to a trustee for a person "for life and after her decease to her heirs at law, ' ' to the exclusion of brothers of the life tenant. GiUiam v. Guaranty Trust Co., Ill App. Div. 656, 97 X. Y. Supp. 758, aff'd 186 X. Y. 1227, 73 X. E. 697; -n-here all the general legislation on adoption is stated. Adults can be adopted now by L. 1915, ch. 352, in effect April 22, 1915. See X. Y. L. J. (editorial), April 9, 1917, and Steivens v. Halstead, 181 App. Div. 198, 168 X. Y. Supp. 142. Adoption by adults does not affect inheritance before June 25, 1873. Domestic Relations Law (L. 1909, ch. 19), § 110, as amended by L. 1917, ch. 149. In^heeitaxce theotjgh fostze paeext.- — Under Domestic Relations Law (L. 1909, ch. 19), § 114 (former Domestic Relatione Law, L. 1896, ch. 272, § 64), which alloivs an adopted child and foster parent to inherit feom each othee, the right is not given either expressly or hy implication, to the child to inherit theotjgh the foster parent from his collateral kin, said parent heing dead. A stranger to the adoption proceedings, who has never recognized the existence of any artificial relation, should not have his property diverted from the natural course of descent. Since an adopted child cannot toJce as heir of the collateral relatives of the adopter, it is unnecessary to cite such child in probating the wills of such collateral relatives after the foster parent has died. Since 1896 a foster parent inherits from an adopted child. And if the child was never married and had no brother or sister, the brothers and sisters of a deceased foster mother inherit, although his natural father is living. Carpenter v. Botfalo General Electric Co., 213 X. Y. 101, 106 X. E. 1026. ADOPTION. 51 An abrogation of adoption cannot be revoked by the surro- gate. Matter of Ziegler, 82 Misc. 346, 143 N. Y. Supp. 562, aflf'd 161 App. Div. 589, 146 N. Y. Supp. 881. Inheritance from natural relatives. — ^A legal adoption does not prevent the person adopted from inheriting from his natural relatives. Matter of Landers, 100 Misc. 635, 166 N. Y. Supp. 1036. An adopted child is an afterbom child within the meaning of Decedent Estate Law (L. 1909, ch. 18), § 26. Bourne v. Dorney, 184 App. Div. 476, 171 N. Y. Supp. 264. The word child in a will does not include an adopted child. In re Puterbaugh's Estate, 261 Penn. St. 235, 104 A. 601. An adopted daughter takes a devise to her mother from her father, whom the mother predeceased. Matter of Foster, 108 Misc. 604. 2. Legal status fixed by law of place of adoption. Inheritance from foster parent. — A child adopted according to the laws of a foreign state, which make such a child a "legal child" can inherit through the intestacy of his foster parent here. It is not necessary that he be a "lineal descendent" by blood. By a liberal construction of our Statute of Descents, such an adopted child is a "child" within the meaning of the statute. Miller v. Miller, 91 N. Y. 315. The* law of the place of adoption governs everywhere as to 'inheritance from the foster parents. But a limitation in a deed or will by a stranger to the adoption, to a foster parent for life^ remainder to the foster parents' children, will not go to the adopted child. Domestic Relations Law (L. 1909, ch. 19), § 114. Matter of Leask, 197 N. Y. 193, 90 N. E. 652. Adopted child not lawful issue. — The legal status of adopted children, acquired by the laws of the place of their adoption, 52 PEACTICAL REAL ESTATE LAW. even in a foreign country, is, by the law of comity recognized in every other jurisdiction ^vhere such status becomes material in determining the right to take property by will or inheritance. But an adopted child is not included in the term "lawful issue" of a person, as used in a will, because that term includes only descendents, or children of the person's own blood. New York L. Ins. & Trust Co. v. Viele, 22 App. Div. 80, 47 N. Y. Supp. 841, afif'd 161 N. Y. 11, 55 N. E. 311. *3. Under trajisfer tax law. Meaning of adopted child under the Transfer Tax Law (L. 1909, ch. 62), art. -10, which says "Adopted in conformity with the laws of New York state." This does not require the pro- ceedings for adoption to be under the laws of this state, or within this state, but only to be in conformity with them or like them wherever conducted. Adoption proceedings in Massachu- setts were held to be substantially similar to our own and to be within the meaning of the act. Matter of Butler, 58 Hun, 400, 12 N. Y. Supp. 201. aff'd 136 N. Y. 649, 32 N. E. 1016. Inheritance through adopted child. — Domestic Relations Law (L. 1896, ch. 272), § 64, gives to an adopted child the same legal relation to the foster parent as a child of his body; and that relation extends to the heirs and next of kin of the child by adoption, the same as to those of a child by nature. The legis- lature created the relation and extended to it the right of inheritance, not only as between the foster parent and the adopted child, but also as between the children of the adopted child and the foster parent. Matter of Cook, 187 N. Y. 253, 79 K. E. 991, rev'g 114 App. Div. 718, 99 N. Y. Supp. 1049. (This was an inheritance tax case.) • See also Gleason and Otis on Inheritance Taxation (2d ed.). ADVERSE POSSESSION. 53 ♦ADVERSE POSSESSION. (See Streets; Tenancy in Common.) 1. Of burial plot. 2. Color of title. 3. Prior to Code of Civil Procedure. 4. What constitutes. 5. What does, not constitute. 6. How defeated. 7 inclosure. 8. Evidence. 9. Family history. 10. Titles by when good and marketable. 11. By lessee. 12. Against municipality. 13. Possession of part may cover whole. 14. Distinguished from prescription. 15. When it does not run. 16. As against the state. 17. Tenancy in common. 1. Of burial plot. Title by adverse possession. — Adverse possession cannot he safely relied on as against the owners of a burial plot, because of the peculiar- ity and uncertainty of its tise by the owners; such use being generally controlled by the time of death. But the use of a burial plot by a man to bury his dead for over twenty years, improving, grading" and sodding the lot, and planting flowers thereon every year, constitutes as exclusive possession as the nature of the circumstances would permit; and if he entered under a claim of title through purchase, his title by adverse possession is complete. Uonger v. Treadway, 132 N. Y. 259, 30 N. E. 605. 1 2. Color of title. !N"eoessitt foe coloe of title. — Adverse possesion titles may be divided into two classes: (1) those based on coloe of title; and (2) * See also Wood on Limitations (4th ed.) ; Bliss' Code of Civil Procedure (6th ed.), and Supplement, 1919; Parsons' Code of Civil Procedure. tSee also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 5, p. 258. 54 PEACTICAL REAL ESTATE LAW. those based on actiuil possession only, and without coloe of title. The titles in the first class are marketable while those in the second class can never he marketable until fortified by a deed or a judgment of court. The basic reason for this is that, without color of title, there neither is nor can be, any written oe eecoed EViDEiircE of title. Adverse possession without color of title does not make a marketable title because (1) the record does not raise any presumption that such possession as there has been was " under a claim of title, exclusive of any other right" {Code of Civil Procedure, § 371), and proof of that fact is difficult, and (2) ivhere there is not color of title by written instrument, possession of a part of the tract, is not constructive posses- sion of the whole; which often increases the difficulty of proving title. Without color of title the record does not raise any presumption, that the possession has been " under a claim of title exclusive , of any other right.'' {Code of Civil Procedure, § 371.) And proof of that fact is generally very difficult. Again, without color of title, the possession of a part is not constructive possession of the whole, which generally irv- creases the difficulty in proving the title. Adverse possession without color of title depends upon oral testimony, and the title is unmarketable. Timmennann v. Cohn, 204 N. Y. 614, 97 N. E. 589, citing Heller v. Oohen, 154 N. Y. 299, 48 N. E. 527. A title resting on adverse possession is not marketable, unless there has been an assertion of claim of title of eecoed for more than twenty year's. When t^ere is a strip one-half inch wide outstanding, on which a house has been built for. twenty years, the title is good but not MAEKETABLE. But a title resting on possession without color of title may be passed where the record owner and his heirs have been barredby the judgment in a partition action to which ihey were parties. Adverse possession cannot run without any title claim or color of title. Otherwise the law will presume that the possession is in subservience to the legal owner. De St. Laurent v. Gesoheidt, 18 App. Div. 121, 450 N. Y. Supp. 730. Adverse possession can never ripen into a marketable title, unless held under color of title, which means a written instru- ment. Maupin, Marketable Title to Real Estate (2d ed.), § 292. Kneller v. Lang, 63 Hun, 48, 17 N. Y. Supp. 443, aff'd 137 N. Y. 589, 33 N. E. 555. ADVERSE POSSESSION. 55 Adverse possession for twenty years without color of title, may be a good title; but it is not a marketable one, because it rests entirely upon parol evidence which may be very difficult to prove. Gorman v. Gorman, 40 App. Div. 225, 57 N. Y. Supp. 1069, afif'd 159 N. Y. 571. Holly V. Hirsch, 135 N. Y. 590, 32 N. E. 709. A purchaser could be compelled to accept such title, if shown. Hartley y. James, 50 N". Y. 38, 42. But ejectment may be maintained on such a title. Barnes v. Light, 116 N. Y. 34, 22 N. E. 441. If entry is under color of title, the possession will be adverse, however groundless the title. Sands v. Hughes, 53 N. Y. 296 Entry and possession under a deed without right in the grantor, is entry under color of title, and the possession is adverse. Ledoux V. Samuels, 116 App. IHv. 726, 102 N. Y. Supp. 43. Color of title can be based on a defective deed, such as one laeking a seal or having a defective acknowledgment. Abrams v. Ehoner, 44 Hun, 507. Color of title sufficient for adverse possession is furnished by a deed executed under a power of attorney, which power is not proved. Munro v. Merchant, 28 N. Y. 9. It can he hosed on a state comptroller's deed, because that is not a lease, hut is by statute an absolute conveyance. But it cannot be predicated upon a deed procured by fraud; because such a deed does not give even a colorable title, and the right to set it aside passes to heirs, devisees and grantees. Moody V. Moody, 16 Hun, 189. It can be based on a contract of sale. — "When the considera- 56 PRACTICAL REAL ESTATE LAW. tion is paid, the agreement is tantamount to a deed, as the foundation of an adverse possession. ' ' Fosgate v. Herkimer Man & Hydraulic Co., 12 Barb. 352, aff'd 12 N. Y. 580. A contractee entering into possession under a contract, does not hold adversely as against the vendor until his agreement has been fully performed so that he has become entitled to a conveyance. Matter of Department of Parks, 73 N. Y. 560. Adverse possession for twenty years may be had by a person although his deed is dated less than twenty years ago, provided he entered into possession under an executory contract of pur- chase over twenty years ago, which was afterward consum- mated. His possession was adverse to everyone except the vendor. Howland v. Newark Cemetery Assn., 66 Barb. 366. Possession must be under a written instrument in order to be hostile in its inception; otherwise it is deemed to be in sub- ordination to the title of the legal owner who is always con- structively in possession. Cutting V. Burns, 57 App. Div. 185, 68 N. Y. Supp. 269. Possession by a grantee is presumed to follow a deed, where there is no evidence of the facts. ISTewton v. Evers, 143 App. Div. 673, 128 N. Y. Supp. 327. "Possession usually follows the legal title when no adverse possession is shown, and consequently, when the lands are un- occupied, the possession will be deemed to be in those having the title." Florence v. Hopkins, 46 N. Y. 182, 186. French government deeds were never good in this state; and adverse possession cannot be made out where the original entry, was made under such deeds. Jackson v. Waters, 12 .Jolms. 365. Title to egad. — A conveyance hy lot number on a map, although it gives title to one-half the road if the grantor owns it, does not give ADVERSE POSSESSION. 57 color of title to the road sufficient to base adverse possession on under the Code of Civil Procedure; because the description only includes the road by implication, ^ 3. Prior to Code of Civil Procedure. Under our statutes possession is not deemed adverse unless the occupant entered under claim of title exclusive of any other right, founding such claim upon some written instrument, as being a conveyance of the premises, or upon the decree or judg- ment of some competent court. 2 R. S., 294. § 9, and Code of Procedure, § 82. In all other cases, the occupation is presumed to have been under the legal title where one is established. 2 E. S., 293, § 8; Code of Procedure, § 81. Eessel v. Kickham, 36 Barb. 386, 390. Actual and constructive possession. — Under §§ 84, 85, Code of Procedure. "The statute was intended to recognize the distinc- tion between actual and constructive possession. The former being necessary where the claim of title is not under a written instrument, while the latter will suffice where it is. ' ' Pope V. Harnner, 74 N. Y. 240, 243. 4. What constitutes. Adverse possession cannot be had under a tax lease, but can be under a quitclaim deed from the tax lessee, even though it mentions the lease for identifying the premises. Recording the deed is not essential. Sanders v. Riedinger, 19 Misc. 289, 43 N. Y.^upp. 127, 30 App. Div. 277, 51 N. Y. Supp. 937, aff'd 164 N. Y. 564. Cutting the grass on salt meadows, being all the use of which the land admits, is usual cultivation. Koch V. Ellwood, 138 App. Div. 584, 123 N. Y. Supp. 502. Evidence showing acts of ownership exercised as far back as the memory of man runs, is sufficient to justify the presumption of a grant. Adverse possession of salt meadows, which are in- capable of cultivation, is established where the plaintiff and his 58 PEACTICAL EEAL ESTATE LAW. predecessors for over twenty years made a regular open and notorious use of the lands by cutting the natural grass there- from, that being the only use for purposes of husbandry of which the land was susceptible. Shinnecock Hills & P. B. Realty Co. v. Aldrich, 132 App. Div. 118, 116 N. Y. Supp. 532, aff'd 200 N. Y. 533. The twenty years adverse possession need not be immediately before suit is brought, in order to make a case under Code of Civil Procedure, § 368. Sherman v. Kane, 86 N. Y. 57. It will run against a right of way by necessity, the same as any other right of way. Smyles v. Hastings, 22 N. Y. 217, 220. An alien can hold by adverse possession. — It is not a question of title. The statute, 2 R. S., 293, § 5, bars the owner from recovering possession in ejectment. And there is nothing in our statutes to prevent aliens from occupying lands adversely to the titles of citizens. Overing v. Russell, 32 Barb. 263. Assignee in bankruptcy. — Adverse possession will run against an assignee in bankruptcy. Ledoux V. Samuels, 116 App. Div. 726, 102 N. Y. Supp. 43. The possession by several successive persons must be con- tinued by a regular chain of privity between them. The mere surrendering of possession by one to the other is not sufficient. Jackson v. Leonard, 9 Cow. 653. Liability for suit in ejectment.— If the defendants had such a possession as to enable them to be sued in ejectment, they had such possession as would, if continued long enough, ripen into a right. People V. Van Rensselaer, 9 N. Y. 317. Adverse possession against the grantor's own deed may be had where there is no warranty of title. A grantor may set up, as against his own deed, a title acquired by him by a con- ADVERSE POSSESSION. 59 temporaneous or subsequent practical location, with an adverse possession for the requisite length of time. Cramer v. Benton, 64 Barb. 522. Established against an abandoned railroad right of way site in forty years. Arnold v. N. Y., Westchester & Boston Ry. Co., 173 App. Div. 764, 159 N. Y. Supp. 258. When the possession is under two instruments, one subservi- ent, and the other hostile to the true owner, "such possession, in the absence of positive notice to the contrary, will be regarded as subservient only, for the law raises a presumption in favor of an honest and against a dishonest purpose. ' ' Lewis V. N. Y. & Harlem R. R. Co., 162 N. Y. 202, 56 N. E. 540. "Possession means simply the owning or having a thing in one's own power; it may be actual, or it may be constructive. Actual possession exists where the thing is in the immediate occupancy of the party; constructive is that which exists in contemplation of law, without actual personal occupation." Actual occupation is required in order to break in upon the registry laws. Nothing short of actual, visible and notorious possession has been held constructive notice of title in a claim- ant. The principle of constructive notice of possession will not apply to unimproved lands, nor to an uninhabited and unfinished dwelling house. The possession of lands, to charge a purchaser with notice, must not be occasional, nor for a temporary purpose. The using of lands for pastur£^ge or for the cutting of timber, is not such an occupancy as will charge a purchaser or incum- brancer with notice. Brown v. Volkening, 64 2Sr. Y. 76, 80. A squatter can never obtain title by adverse possession, because his possession is not under claim of title. In re Mayor of New York, 18 N. Y. Supp. 82, 44 St. R. 189. A MAN ENLISTED IN THE AEMT in 1864, and handed to a friend his deed to some land telling him that he (the friend) could have the land if he (tfie soldier) never came bach. He did not return and the friend 60 PRACTICAL REAL ESTATE LAW. went into possession of the land and later acquired a tax lease on it. In 1912 the friend's heirs brought a partition suit against the soldier and his heirs and harred them on adverse possession. Title marketable. 5. What does not constitute. It cannot be proved by cutting grass.— A title in fee will not be implied, where an easement only would secure the privilege enjoyed. Proving the cutting of grass can only at most estab- lish a prescriptive right to the. easement of cutting the grass. Eoe V. strong, 107 N. Y. 350, 14 N. e. 294. By flooding lands. — The uninterrupted use of a dam overflow- ing the lands of another for more than twenty years is pre- sumptive proof of adverse possession. It is not necessary for the party claiming it to prove the user adverse; and it rests upon the party submitting to such user to show that it was by his leave and favor. Hammond v. Zehner, 21 N. Y. 118. In this case, however, all that the owner of the dam got was a pre- scriptive RIGHT TO OVERFLOW THE LANDS, and uot the fee title to them. Flooding by a pond does not create a right to the fee. Gouverneur v. National Ice Co., 57 Hun, 474, reversed an ano. ground, 134 N. Y. 355. Adverse possession of land on the bank of a stream, does not carry such possession, either by legal presumption or construc- tively, to the center of the stream. Corning v. Troy Iron and Nail Factory, 34 Barb. 485, 23 How. Pr. 217. Surveying uninclosed, unimproved and unoccupied lands, marking their boundaries by monuments, occasionally cutting trees therefrom for use on another tract, and paying taxes thereon for a few years, are insufficient under the Code of Civil Procedure to create a title by adverse possession. Mission of Immaculate Virgin v. Cronin, 143 N. Y. 524, 38 N. E. 964. Fencing on one side, cutting sedge and paying taxes are not evidence of title. A city is not estopped from claiming title by reason of its having made maps showing the property as belong- ADVERSE POSSESSION. 61 ing to an individual, and assessing^ and collecting taxes from him on it. McFarlane v. Kerr, 23 Super. (10 Bosw.), 249'. The erection of a fence alone is not adverse possession under Code of Civil Procedure, § 372. Green v. Horn, 165 App. Div. 743, 151 N. Y. Supp. 215. Paying taxes and surveying and dividing into lots, is no evi- dence of possession. Thompson v. Burhans, 61 N. Y. 52. Adverse possession- by a wall of a building for twenty years without color of title, does not make a marketable title because an ease- ment only would satisfy it. 6. How defeated. Acknowledgment by occupant. — Adverse possession is defeated by a single lisp of acknowledgment by the occupant that he claims no title. Criswell v. Noble, 61 Misc. 483, 113 N. Y. Supp. 954, aff'd 134 App. Div. 994, 119 N. Y. Supp. 1122. Failure to plead adverse possession by a judgment debtor in possession of premises in an action to foreclose a mortgage made by^a purchaser at sheriff's sale on execution, effects a reunucia- tion of his claim under such possession, and it then ceases to be adverse. Cook V. Travis, 20 N. Y. 400. Entry by the defeated party after ejectment, is presumed to be under the rights of the successful party. Acceptance of redemption money on a tax sale, is a recognition of the owner's right. Monnot v. Rudd, 139 App. Div. 651, 124 N. Y. Supp. 210. Title is not lost by a street easement. — The seizin or possession of the owner of land in a highway over which a city has acquired an easement only, is not lost by the city's occupation, because that is in subordination to the legal title; and on the abandon- 62 PEACTICAL BEAL ESTATE LAW. ment of the road, no question arises of reentry or the loss of the right thereto by the lapse of time. Deering t. Reilly, 167 N. Y. 184, 60 N. E. 447. 7. Inclosure. Natural barrier. — ^A river, mountain or a ledge of rocks, or the sea on one side forming a natural barrier, the other sides being enclosed, would, with claim of title, constitute an adverse possession. A fence need not be maintained closer to a river than is necessary to protect it from being swept away by a rise of water. Trustees of Freeholders of Easthampton v. Kirk, 84 >f. Y. 215. Two sides were fenced, and on the other two were ledges of rocks. Held, that the ledges completed the inclosure as much as if a fence had been constructed. Nature had substantially enclosed it. Becker t. Van Valkenburgb, 29 Barb. 319. Salt meadow, surrounded by a ditch on three sides, and a creek on the fourth, is "enclosed" legally. Koch T. EU-n-ood, 139 App. Div. 584, 123 X. Y. Supp. 502. Inclosure need not be by fencing. Natural barriers, such as streams, are sufficient. Sanders v. Riedinger, 19 Mise. 289, 43 X. Y. Supp. 127, 30 App. Div. 277, 51 N. Y. Supp. 937, aff'd 164 X. Y. 564. A fence as near a river as it can stand without being washed away by the flooding of it, makes in contemplation of law an inclosure to the river. Jackson t. Halstead, 5 Cow. 216. 8. Evidence. Question of law. — Adverse possession is purely a question of law where the facts are undisputed. jbowie V. Brahe, 10 Super. (3 Duer), 35, 44. Question of evidence. — "The only reason, if any, why a title by adverse possession is not marketable would be because its validity is a question of evidence rather than of law. ' ' Maupin, Marketable Title to Real Estate (2d ed.), p. 740, note 41, citing McCabe v. Kenney, 52 Hun, 514, 5 N. Y. Supp. 678. ADVERSE POSSESSION. 63 Quality of proof. — It is a well establislied rule that the doctrine of adverse possession is to be taken strictly; and not to be made out by inference, but only by clear and positive proof. Every presumption is in favor of possession in sub- ordination to the title of the true owner. The possession must be under claim and color of title, and exclusive of every other right. Mere possession for twenty years is not enough; but evi- dence must be furnished that it was in hostility to the true owner. Hammond v. Zehner, 21 N. \. 118. Miner v. Hilton, 15 App. Div. 55, 44 N. Y. Supp.'lSS. What must be shown. — ^In titles founded on adverse posses- sion there should be evidence to show (1) that possession has been open, hostile, adverse, notorious and uninterrupted for the statutory period; (2) that there is no saving to any person on account of personal disabilities; and (3) it should appear that in all human probability the purchaser will have the means at hand to reestablish his title by adverse possession if it should be attacked in the future. Maupin, Marketable Title to Real Eataae (2d ed.), § 292. Parol evidence of possession, limited to the extent of posses- sion, and not as to title, is competent. DibMe v. Cole, 102 App. Div. 229, 92 X. Y. Supp. 938. 9. Family history. Burden of proof. — Where one claims to have a marketable title by adverse possession, without a complete record title, the burden is upon the party asserting such title to establish it. Blixt V. Eltona Realty Co., 138 App. Div. 499, 123 N. Y. Supp. 861. "The burden of procuring the evidence to establish the con- tinuous possession for the requisite time cannot be imposed upon the purchaser." Knelier v. Lang,.^3 Hun, 48, 17 N. Y. Supp. 443, aflf'd 13,7 N. Y. 589, 33 N. E. 555. 64 PEACTICAL EEAL ESTATE LAW. The proof must negative the existence of persons who might attack the title. Fuhr V. Cronin, 82 App. iJiv. 210. 81 N. Y. Supp. 536. Simis V. McElroy, 160 N. Y. 156, 54 N. E. 674. Tender of title by adverse possession must not only be accom- panied by proper proofs of possession, bnt also by proofs nega- tiving the possibility of outstanding claims to the land by the heirs of a former owner, as to whom the adverse possession was open to contingencies of remaindership and infancy. Simis V. McElroy, 160 N. Y. 156, 54 N. E. 074. A vendee is not compelled to accept a title based on adverse possession, unless the vendor shows that none of the persons having possible interests were under any legal disability, so that the Statute of Limitations would run against them. Carolan v. Yoran, 104 App. Div. 488, 93 N. Y. Supp. 935, aff'd 186 N. Y. 575, 79 N. E. 1102. Peoofs withotjt family histoet of the party against whom the possession is running do not mal-e a marJcetahle title. Without family history.— Over sixty years is sufficient. Faile v. Crawford, 30 App. Div. 536, 52 N. Y. Supp. 353. For fifty-six years makes a marketable title. Clarke v. Wollpert, 128 App. Div. 203, 112 N. Y. Supp. 547. Over fifty years is sufficient. In such a case "the contingency of the title ever being attacked is so remote as to be a matter of pure speculation and conjecture." Ruff V. Gerhardt, 73 App. Div. 245, 76 N. Y. Supp. 743. Over forty-two years is sufficient. Infancy can only extend the period of limitation to thirty-one years; and the possibility of insanity is too remote to be considered, without any evidence to support it. Wanser v. DeNyse, 125 App. Div. 209, 109 N. Y. ,Supp. 310, aflf'd 192 N Y 537. For forty-one years makes a marketable title. Measinger v. Foster, 115 App. Div. 689, 101 N. Y. Supp. 387. ADVERSE POSSESSION. 65 For thirty-eight years makes a marketable title. N. Y. Steam Co. v. Stern, 46 Hun, 206. Tor twenty-seven years is not sufficient. Lalor V. Tooker, 130 App. Div. 11, 114 N. Y. Supp. 403. 10. Titles by when good and marketable. "Title by adverse possession is equally strong as one obtained by grant." Sherman v. Kane, 86 N. Y. 57, 65. Continued for over sixty years. — A purchaser may be com- pelled 'to take a title founded upon adverse possession alone, where such possession has continued for over sixty years. Ottinger v. Strasburger, 33 Hun, 466, afl'd 102 N. Y. 692. Interest outstanding since 1855. — Adverse possession against an outstanding interest since 1855, and title not questioned since 1833. Title good. Kahn v. Mount, 46 App. Div. 84, 61 N. Y. Supp. 358. A partition judgment purporting to dispose of all the real estate of a deceased title holder, and omitting the premises in question, fortifies an adverse possession for fifty years so as to make the title marketable. ottinger v. Strasburger, 33 Hun, 466, aff'd 102 N. Y. 692. And this is so on a judicial sale. Grady v. Ward, 20 Barb. 543. Established by parol. — Title by adverse possession, although established by parol testimony, is marketable. Freedman v. Oppenheim. 187 N. Y. 101, 79 K E. 841. Proofs difficult to obtain. — Title by adverse possession is marketable even if the proofs thereof are extremely difficult to obtain. Hammershlag v. Duryea, 31 Misc. 678, 56 N. Y. Supp. 87, aff'd 58 App. Div. 288, 68 N. Y. Supp. 1061, and 172 N. Y. 622. 5 66 PRACTICAI. REAL ESTATE LAW. The owners of adjoining lots occupied up to a division fence for more than thirty years. Held, sufficient to give each title by adverse possession. Robinson v. Phillips, 1 T. & C. 151, 65 Barb. 418. DuFort V. Conroy, 1 Hun, 609, 4 T. & C. 696. "The plaintiff was not bound to accept a title resting on adverse possession." Hartley v. James, 50 N. Y. 38. Mott V. Mott, 68 N. Y. 246. A TITLE BESTING ON ADVEESE POSSESSION IS NOT CLEARLY MAEKET- ABLE UNLESS the testimony concerning the facts and family history is perpetuated under Code of Civil Procedure, § 1688 ; because a title which depends upon parol evidence to sustain it is not marhetahle. There are only about a half dozen cases ivhich hold that a title based entirely on adverse possession, is maeketable although it may be good; and in all of these cases, the parties being in court (which the examiner of titles is not) the testimony was practically perpetuated, although the decisions were rendered in the absence of the parties in whom the outstanding record titles ivere. 11. By lessee. Parol evidence; tenant in possession after expiration of tax lease. — An adverse possession title will not be forced on a pur- chaser unless it is demonstrated to a reasonable degree of cer- tainty that the parol evidence cannot be contradicted. He will not be compelled to take a title originating in a tax lease, after the expiration of which the tenant has continued in possession. Ruess V. Ewen, 34 App. Div. 484, 54 N. Y. Supp. 357, aff'd 165 N. Y. 633. Title of tenant holding over. — "When a person enters under another, and transfers the possession, his grantee is supposed to hold under the same title. Although the lease be expired, he will be regarded as holding by consent of the original landlord, and as his tenant at will; unless he can show that since the expiration of it, he has acquired a new title, either from, or paramount to that of the party under whom possession was taken. ' ' Brandter v. Marshall, 1 Caines, 394, 400. ADVERSE POSSESSION. 67 Adverse possession by a tenant cannot begin to run until the expiration of twenty years after the last payment of rent; because under Code of Civil Procedure, § 373, the tenancy con- tinues until that time. Church V. Schoonmaker, 42 Hun, 225, aff'd 115 N. Y. 570. Adverse possession will not run under an assessment lease. — Such a lease is only a term for years; and possession under it is entirely consistent with the title of the reversioner in fee. A tenant for years is possessed, not properly of land, but of the term for years. Bedell v. Shaw, 59 N. Y. 46. Adverse possession originating during the continuance of a tax lease, cannot be maintained; because the fee owner must have twenty years after the expiration of the lease to bring his action. Doherty v. Matsell, 54 Super. (22 J. & S.), 17. Adverse possession will not run under a tax lease or an assign- ment thereof, with all other interest of grantor, accompanied by a quitclaim deed. Doherty v. Matsell, 56 Super. (24 J. & S.), 76, 1 N. Y. Supp. 436, aff'd 119 N. Y. 646. 12. Against municipality. Title to land under water was held to have been obtained against the city of New York by adverse possession by filling in and using for fifty-four years. Knapp V. City of New York, 140 App. Div. 289, 125 N. Y. Supp. 201. Lands held for public use. — Adverse possession will not run as against a municipal corporation as to lands held for a public purpose. The use of a pavilion only for bathing for a few months in the summer, and abandoned afteV ten or twelve years, is not adverse possession, even though the building stands for twenty years. Trustees of Town of Brookhaven v. The Dyett Sand-Lime Brick Co., 75 Misc. 310, 135 N. Y. Supp. 165. 68 PBACTICAL REAL ESTATE LAW. But a city can acquire rights to land used as a street by actual user. Johnson v. City of Shenandoah, 153 la. 493, 133 N. W. 61. 13. Possession of part may cover whole. Part of land cultivated or fenced. — Under the last subdivision of Code of Civil Procedure, § 370, actual possession of a part of a tract, together with the planting and enjoyment of an orchard, and the use of woodland on another part thereof, is sufficient occupation to create title by adverse possession to the latter part. Northport R. E. & I. Co. v. Hendrickson, 139 N. Y. 440, 34 N. E. 1057. Actual possession of the land in a deed under claim of title founded on said deed for over twenty years, presumptively gives title under Code of Civil Procedure, §§ 369, 370, although the entire premises were not enclosed or cultivated. Stillman v. Burfiend, 21 App. Div. 13, 47 N. Y. Supp. 280. Adverse possession of unfenced woodland by cutting fuel and timber and paying taxes, in connection with an adjacent farm which was fenced, held sufficient under Code of Procedure, §§ 82, 83, subds. 3, 4; and Code of Civil Procedure, §§ 369, 370, subd. 3. This was founded upon a written instrument, and was based upon evidence that the failure to fence or inclose was in accordance with the custom of the country. Argotainger v. Vines, 82 X. Y. 308. Claim must be under paper title.— There must always be a claim of title. When there is no paper title, there must be actual occupancy — a substantial inclosure. Where a party claims to hold adversely a whole lot by proving actual occupa- tion of a part only, his claim must be under a deed or paper title. Jackson v. Oltz, 8 Wend. 440. 14. Distinguished from prescription. Distinction stated.— Adverse possession is regulated by statute and prescription by the common law; but they are closely related. Adverse possession is the open and hostile ADVERSE POSSESSION. 69 possession of land under claim of title, to the exclusion of the true owner, which, if continued for twenty years, ripens into actual title. Prescription rests upon the presumption of a grant of incorporeal rights that has become lost, and after the lapse of twenty years, this presumption ripens into a title also. It is measured by user; and the adverse use must commence the same way, continue for the same period, and be of the same character as the adverse possession required to make the title to real estate. The analogy between the two extends to the subject of disability. Scallon V. Manhattan Ey. Co., 185 N. Y. 359, 363, 78 N. E. 284. Proof, when an easement is founded on prescription, must be clear and strong. Metzger v. Martin, 87 App. Div. 572, 84 N. Y. Supp. 494, aff'd 177 N. Y. 561. Prescription applies only to incorporeal hereditaments. — As to a right of way over a road the use must have been continuous, uninterrupted and exclusive; and under a claim of right with the knowledge of the owner, for twenty years. Miller v. Garlock, 8 Barb. 153. 15. When it does not run. Against remaindermen. — "Until the precedent estate is ter- minated, giving the remaindermen the right of possession, no possession can be adverse to the remaindermen. ' ' Clute V. N. Y. C. & H. E. E. Co., 120 N. Y. 267, 24 N. E. 317. Clarke v. Hughes, 13 Barb. 147. Gilbert v. Taylor, 76 Hun, 92, 27 N. Y. Supp. 828. Snow V. Monk, 81 App. Div. 206, 211, 80 N. Y. Supp. 719. Between husband and wife. — The adverse possession doctrine cannot be applied as between husband and wife. Berkowitz v. Brown, 3 Misc. 1, 23 N. Y. Supp. 792. Tjmmermann v. Cohn, 70 Misc. 327, 128 N. Y. Supp. 770. It does not apply to personalty unless an action to recover it is barred by statute. Bayley v. Bayley, 141 App. Div. 243, 126 N. Y. Supp. 102. 70 PRACTICAL SEAL ESTATE LAW. Title to no part of a highway can be obtained by adverse possession. ilorison v. X. Y. H. R. R. Co., 74 Hun. 395. 26 X. T. Snpp. 641. 16. As against the state. It is doubtful if title in the state by escheat can be defeated by adverse possession. Meighan t. Rohe. 166 App. Dir. 175. 151 X. Y. Supp. 7S5. The title to lands under water cannot be acquired by filling in for forty years. A navigable stream is held for public use, the same as a highway. People T. Delaware & Hudson Co., 75 ilisc. 322. 135 X. Y. Supp. 339. Title to land under water can never be acquired by adverse possession. The case of Town of Brookhaven v. Smith, 188 X. T. 74, 80 N. E. 665, holds that a riparian owner may build a pier; but Barnes v. Midland Eailway Terminal Co., 193 N. T. 378, 85 X. E. 1093, holds that he cannot build a solid structure and exclude the public from the foreshore. Title to land under waters of a navigable river may be acquired by adverse possession as against the state; and riparian rights may be acquired by prescription. Fulton L. H. & P. Co. v. State of Xew York, 62 Misc. 189, 196, 116 X. Y. Supp. 1000. The statute hars an action to recover land hy the state after forty years. Code of Civil Procedure, § 362. Therefore the title to land under water actually filled in for forty years is marketable except for the possibility that the rule that no length of time will validate an en- croachment, applies, on the theory that a tpalerway is a highway. Of land under water for forty years ts good as against the state. Of land under water filled in and actually possessed for fifty years, is good cus against the state. Of land under water by filling in for over thirty years, can be passed as against the state, tvhen i^e location of high icater mark has long been obliterated and cannot now be located. Bank of canal. — Adverse possession against the state must be accompanied by a complete disseizin of the state. For instance, the mere fencing in and occupation of a portion of the bank of a ADVERSE POSSESSION. 71 canal by an individual, is not enough to give him title if all the while the state was in undisturbed possession of the canal. Genesee Valley Canal R. Co. v. Slaight, 49 Hun, 35, 1 N. Y. Supp. 554. 17. Tenancy in common. Tenancy in common is a great deawback to adverse possession, hecause of the rule that the possession of one tenant in common is the possassion of all; and an actual ouster must he shown. Ouster of co-tenants. — ^" Prima facie, the possession of one tenant in common is the possession of all. . . . But if one tenant in common enters upon the whole land, and takes the entire profits, claiming and holding exclusively for the full statu- tory period, an actual ouster of his co-tenants may be pre- sumed. ' ' Wood on Limitations, Vol. 2, (4th ed.), § 266. He may assert an adverse title against his co-tenants, if only it be adverse and to the exclusion of his co-tenant. Florence v. Hopkins, 46 N. Y. 182. Sweetland v. Buell, 164 N. Y. 541, 58 N. E. 663. Zapf V. Carter, 70 App. Div. 395, 75 N. Y. Supp. 197, app. dis. 176 N. Y. 576. Tarplee v. Sonn, 108 App. Div. 241, 96 N. Y. Supp. 6. Exclusive possession by a co-tenant, under claim of title, for forty years, without any assertion of right or claim to any part of the premises or rents by co-tenants, raises a legal presump- tion of ouster which a jury is not at liberty to resist. Jackson v. Whitbeck, 6 Cow. 632. Exclusive occupany for forty years raises a presumption of ouster of the co-tenant. Woolsey v. Morss, 19 Hun, 273. "An ouster will be presumed after an exclusive possession and receipt of the entire profits, with a claim of right to the whole thereof, for twenty-one years. ' ' Abrams v. Rboner, 44 Hun, 507. Adverse possession by a tenant in common for over twenty years, held to result in a good and marketable title. Baker v. Oakwood, 123 N. Y. Ifi. 25 N. E. 312. Zapp V. Miller, 109 N. Y. 51, 13 N. E. 890. 72 PRACTICAL REAL ESTATE LAW. Possession by a grantee of a co-tenant under a deed of the wliole premises will not be adverse unless the possession is incon- sistent with co-tenancy. Hamerslilag v. Duryea, 38 App. Div. 130, 56 N. Y. Supp. 130. Adverse possession under a deed from a life tenant only, must be "an actual, continued, visible, notorious, distinct and hostile possession." It must be such that knowledge of its existence is brought home to the co-tenant. Culver V. Rhodes, 87 N. Y. 348, 354. The possession of one of the tenants in common may become adverse by acts on his part amounting to an exclusion of his co-tenants; and if he conveys the whole premises to a third party, and the purchaser takes actual possession, claiming the whole, it is certain that the possession of such purchaser is adverse, and is not the possession of the former co-tenant of his grantor. Clapp V. Bromagham, 9 Cow. 530, 562. The moment such adverse possession commences, the holding in common is terminated. Florence v. Hopkins, 46 N. Y. 182, 186. Conveyance of an entire lot by a tenant in common of an undivided share. Possession by a bona fide purchaser under such a deed is adverse to the other owners. Jackson v. Smith, 13 Johns. 406. Though a tenant in common enter without claiming adversely to his co-tenant, yet his possession may afterward become adverse by notorious acts and claims of title. Jackson v. Brink, 5 Cow. 483. The act of purchase and assumption of exclusive ownership under such circumstances constituted an adverse possession. Millard v. McMullin, 68 N. Y. 345, 352. Proof. — ^Adverse possession against a tenant in common was proved by entries fifty years old in a minute book of a corpora- ADVERTISING. 73 tion, showing acts and claims of ownership at the time; no family history and sixty years possession. Hamershlag v. Duryea, 58 App. Div. 288, 68 N. Y. Supp. 1061, aff'd 172 N. Y. 622. *ADVERTISING. Advertising for claims against an estate by an administrator or executor, is for his own protection only; and there is no absolute legal obligation to so advertise at all. Bullock V. Bogardus, 1 Denio, 276. Fliess V. Buckley, 90 N. Y. 286, 292. In examining a title, advertising peivileges must be looked OUT FOE^ as it frequently happens that the^y are secured hy ivritten leases, of which the presence of signboards and advertising on ihe premises, is constructive notice. Such advertising is particularly common on lands adjoining railroad tracJcs. An instrument giving the right to use a wall for advertising purposes until no longer available for such purposes, grants a mere revocable license. Manheimer v. Gudat, 55 Misc. 330, 106 N. Y. Supp. 461. A contract to permit the use of a wall for advertising pur- poses for a year, is not a lease, even though the owner "leases" it in the contract. It is only a license, irrevocable for a year; and the licensee is not obliged to remove the advertising matter at the end of the year to avoid further liability, unless he agreed to do so. Goldman v. New York Advertising Co., 29 Misc. 133, 60 N". Y. Supp. 275. An advertising agreement to erect billboards is an easement in gross (more than a license), and is irrevocable by the land- owner. Borough Bill Posting Co. v. Levy, 144 App. Div. 784, 129 N. Y. Supp. 740. I An agreement renting a signboard by an advertising company is not a lease, but a license only. Realty Advertising & Supply Co. v. Hickson, 184 App. Div. 168, 171 N. Y. Supp. 455; citing United Merchants Realty & Imp. Co. v. N. Y. Hippo- drome, 133 App. Div. 582, 118 N. Y. Supp. 128. * See also Heatons' Surrogates' Courts (3d ed.) ; Bliss' Code of Civil Procedure (6th ed.), and Supplement, 1919; Parsons' Code of Civil Procedure. 74 ' PRACTICAL BEAL ESTATE LAW. An agreement to permit advertising on a wall is not a lease, but an easement in gross. Reeve v. Duryee, 144 App. Div. 647, 129 N. Y. Suj-p. 748. Also the privilege to erect a signboard. Stockham v. Borough Bill Posting Co., 144 App. Div. 642, 129 N. Y. Supp. 745. Advertising by a large signpost on a private right of way, can probably be enjoined by an owner whose property adjoins that portion of the street where the advertising is done, even though placed there by the fee owner. Statutes prohibiting the erection of billboards on private prop- erty (for esthetic reasons) for advertising, are unconstitutional. Haller Sign Works v. Pliysical Culture Training School, 249 111. 436, 94 N. E. 920. But ordinances regulating their height and construction are constitutional. People ex rel. Van Beuren & New York Billing Posting Co. v. Miller, 161 App. Div. 138, 146 N. Y. Supp. 403. As are also ordinances regulating the character of advertise- ments, and not permitting them within two hundred feet of schools. These are proper exercise of the police power, and are not violative of the Rhode Island Constitution, art. 1, § 10. Horton v. Old Colony Bill Posting Co., 36 E. I. 507, 90 A.' 822. The validity of a billboard ordinance prohibiting advertising signs, upheld by United States supreme court, on the ground of police power. N. Y. L. J. (editorial), Feb. 26, 1917. Affixing business advertisements to the property of another is punishable by imprisonment of not more than six months or fine of not over $200 or both; and the affixing is presumptive evidence that the proprietor affixed it. Penal Law (L. 1909, ch. 88), § 121. Legislation under the police power is presumed constitutional. Matter of Stubbe v. AdamsoHr 220 N. Y. 459, 116 N. E. 372. AFFIDAVITS. 75 *AFFIDAVITS. As evidence. — Afl&davits of family history and possession, althongli recorded in the land records of the county, are not admissible in evidence Maupin, Marketable Title to Real Estate (2d ed.), § 71. Inheritance affidavits spread upon the record are mere hearsay and inadmissible in the courts. Maupin, Marketable Title to Real Estate (2d ed.), 741, note 44. Affidavits of identity over forty years old, attached to an abstract, and produced from the proper custody, are admissible in evidence as ancient documents. Coleman v. Bruch, 132 App. Div. 716, 117 N. Y. Supp. 582. An affidavit made by a party to an action, and used on a motion, is competent evidence against that party of admissions therein contained. Bogart V. New York & L. I. R. Co., 118 App. Div. 50, 54, 102 N. Y. Supp. 1093, aff'd 191 N. Y. 550. An affidavit taken without the state should contain a certifi- cate of the official character of the notary taking it, under Code of Civil Procedure, § 844; and cannot otherwise be read in evi- dence. But it may always be cured by obtaining the proper certificate. Miller v. Jones, 67 Hun, 281, 22 N. Y. Supp. 86. AflSdavit of title. — One effect of an affidavit of a title by a vendor is to lessen the necessity of the purchaser's inquiring as to the existence of some right or title in conflict with that which he is acquiring. Trombly v. Turner, 116 App. Div. 74, 101 N. Y. Supp. 27, aflf'd 193 N. Y. 624. The omission of the letters "ss." from the venue of an affidavit is immaterial. Smith V. Richardson, 1 Utah, 194. Babcoek v. Kuntzseh, 85 Hun, 33, 32 N. Y. Supp. 587. * See also Skinner's Notaries Manual. 76 PRACTICAL REAL ESTATE LAW. The venue is an essential part of an affidavit, and is prima facie evidence of the place where the affidavit is taken. An affidavit without a venue is a nullity, although sworn to before an officer whose residence is mentioned in the jurat. Cook V. Staats, 18 Barb. 407. Not subscribed.— An affidavit beginning with deponent's name, and sworn to before a proper officer, is sufficient although not subscribed by the deponent. Jackson v. Virgil, 3 Johns. 540. The age of a person making an affidavit of seevice (unless taken advaniage of in the action itself) is immaterial to the title. Re- jection cannot be made unless the fact of actual failure to make the service can be established. Affidavits taken in a foreign state may be used in court here when taken before an officer authorized there, with a county clerk's certificate. L. 1869, ch. 133. An affidavit purporting to be made by one person, but signed and sworn by another, is a nullity. Manisculo v. Slamowitz, 123 App. Div. 690, 108 N. Y. Sup.p. 65. An affidavit stating two facts in the alternative, alleges neither. Arnott V. Wright, 55 Hun, 561, 9 N. Y. Supp. 15. An affidavit taken before an attorney in a case cannot be read in evidence therein, because he is always supposed to draw it. Taylor v. Hatch, 12 Johns. 340. But one taken before a counsel in a case can be read in evi- dence. Willard v. Judd, 15 Johns. 531. AFTER ACQUIRED INTEREST. 77 AFTER ACQUIRED INTEREST. Will pass by covenants of warranty or seizin or quiet enjoy- ment, or right to convey or further assurance ; but not, it seems, by covenants against incumbrances. Maupin, Marketable Title to Real Estate (2d ed.), § 216. Will pass by a quitclaim deed, where the grantor recites that he owns the premises. Jackson v. Waldron, 13 Wend. 178. Does not pass by estoppel in a lease. House T. McCormick, 57 N. Y. 311, 319: Application to purchaser without notice. — The doctrine of the passing of after acquired title should never be applied against a purchaser without notice. Maupin, Marketable Title to Real Estate (2d ed.), § 220. Will not pass to a purchaser under a judgment against the grantor entered prior to his conveyance. Jackson v. Bradford, 4 Wend. 619. Does not pass when the grantor had no title at the time of his conveyance. This is the reason why a purchaser is not required to search for incumbrances executed by his vendor prior to the time when he obtained title. Fanners' Loan and Trust Co. v. Maltby, 8 Paige, 361. A COBPOEATION- MADE A TRUST MORTGAGE COVERING AFTER ACQUIRED property; and subsequently bought a lot, giving back a purchase money mortgage, which was foreclosed without making the trust mortgagee a party. The purchaser took title free from the first mortgage. The only exception to this rule is a railroad corporation, where it is necessary in every case to search the corporation prior to the time of its acquir- ing title. AFTERBORN CHILD. (See Will.) 78 PEACTICAL EEAL ESTATE LAW. AGENCY. Marriage relation. — ^Agency is not presumed by the marriage relation alone. Aarons v. Klein, 29 Misc. 639, 61 N. Y. Supp. 119. Declarations of agent. — Agency cannot be proved by the declarations of the agent. Weltman v. Kotlar, 124 App. Div. 494, 108 N. Y. Supp. 952. Attorney. — A contract signed ** Isaac Simonson by his attorney, Henry G. Guyon," or "Henry G. Guyon, attorney for Isaac Simonson, ' ' is, on the face of it, the contract of Simonson, if Simonson 's name appears in the body of the contract. It is settled than an agent, in order to bind his principal, must con- tract in the principal's name. Guyon v. Lewis, 7 Wend. 26. "The rule of law which requires an agent to sign the name of his principal in the execution of instruments, is confined to writings under seal." Pinckney v. Hagadorn, 8 Super. (1 Dner), 89, 96, aff'd 14 N". Y. 590. A note was signed "C. L. RoUins, Agt.," and accepted with information that EoUins was acting as agent for his wife. Held, that the principal, and not the agent, was liable. Craudall v. Rollins, 83 App. Div. 618, 82 N. Y. Supp. 317. Agency without interest does not survive the death of the principal. — "The interest which can protect a power after the death of the person by whom it was created must be an interest in the thing to which it relates. " Oatman v. Watrous, 120 App. Div. 66, 73, 105 N. Y. Supp. 174. To receive payment of a mortgage. — Where an agent, who invests for his principal in an outstanding bond and mortgage, is permitted to collect the interest thereon and to retain posses- sion and control of the security, he has apparent authority to receive payment thereof; and his principal is estopped from denying that he possessed such authority. Central Trust Co. v. Folsom, 167 X. Y. 285, 60 X. E. 599. The payment of a mortgage to an agent of the mortgagee, by a check to the order of the agent, cashed by the agent, is good. Potter V. Sager, 184 App. Div. 327, 171 N. Y. Supp. 438. ALIENAGE. 79 ALIENAGE. 1. Acquisition of citizenship. 2. At common law. 3. By statute prior to 1845. 4. Under Act of 1845. 5. Under Act of 1893. 6. From 1896 tol913. 7. Under Act of 1913. 8. Effect of l^islative grant. 9. Title through aliens not to be questioned. 10. Its effect on trusts. 11. Of woman. 1. Acquisition of citizenship. N'eithee Japanese noe Chinese can become naturalized here; he- cause they are neiiher ivJiite nor hlach, hut helong to the Mongolian race. But a Chinaman bom here of parents whose permanent domi- cile is here, is a citizen. United States v. Wong Kim Ark, 169 U. S. 649. Naturalization is limited to white and black persons. — Mongo- lians, Malays and Indians are debarred from it. Matter of San C. Po, 7 Misc. 471, 28 N. Y. Supp. 383. Parsees of India belong to the white race and can be natural- ized. U. S. v. Balsara, 180 Fed. 694, 103 C. C. A. 660. Porto Ricans and Filipinos are neither citizens nor 'aliens, but are under the protection of the United States, and may be naturalized. Fowler, Real Property Law of New York (3d ed. ), p. 115. Porto Eicans were made citizens by Act of Congress, March 2, 1917. Hawaiians became citizens by an Act of Congress of April 30, 1900. Fowler, Real Property Law of New York (3d ed.), p. 115, 31 U. S. Statutes at Large, 141. 80 PEACTICAL REAL ESTATE LAW. A naturalkation certificate obtained by fraud can be canceled under § 15 of the Naturalization Act of 1906. N. Y. L. J. (editorial), July 12, 1912. The citizens of any country annexed to the United States may become United States citizens by naturalization. 34 U. S. Statutes at Large, 606, § 30. Peoof. — Naturalization is a judicial act of record^ and it can he proved hy the record only and not by parol. Theee aee but three soueces of citizenship in the United States. (1) birth, (2) marriage and (3) naturalization; which last is limited to free white persons and those of African nativity or descent. Trading With the Enemy Act construed. Amdt-Ober v. Metropolitan Opera Co., 182 App. Div. 513, 169 N. Y. Supp. 944. The act is constitutional. Busantz v. Sup. Council Eoyal Arcanum, 106 Misc. 545. Wife and children. — The naturalization of an alien already married operates to naturalize his free white wife. Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135; also his resident minor children. People V. Newell, 38 Hun, 78; U. S. R. S. § 2172. The naturalization of the parent makes all the minor children residing in the United States, at the time, citizens. Matter of Morrison, 22 How. Pr. 99. Alien children under twenty-one become citizens by the naturalization of their mother through the naturalization of her second husband. People V. Newell, 38 Hun 78. Where. a second husband of an alien woman becomes natural- ized, both she, herself, and her infant son by a former husband, thereby become citizens. Matter of ClmoreUi, 91 Misc. 604, 155 N. Y. Supp. 509. ALIENAGE. - 81 Declaration of intention is not an application for citizenship. — A German citizen cannot be naturalized after war was declared, even thongli lie had previously filed his declaration. Matter of Meyer, 100 Misc. 587, 166 N. Y. Supp. 505. A naturalized citizen may lose his citizenship by continued residence in a foreign state. 34 U. S. Statutes at Large, 1228. By act of Congress, any naturalized citizen who returns to the land of his nativity and resides there continuously for five years, thereby loses his citizenship here. 34 U. S. Statutes at Large, 1228. An American born woman who marries an Austrian, but who is a law-abiding resident, can inherit real estate, although we are at war with Austria. § 10, Real Property Law construed. Hughes V. Techt, 188 App. Div. 743. Under the Trading with the Enemy Aot of Congress of Oct. 16, 1917, before an enemy alien can sell real estate, a, license must be pro- cured from the War Trade Board, wider § 5a of the Act, permitting the alien to sell, and the purchaser to buy and pay for, the land. 2. At common law. Right to take and hold real property. — Upon the abrogation of the statutes of England by L. 1788, ch. 46, the common law alone governed the rights of aliens to take and hold real estate. At common law an alien could acquire a defeasible title to real property by purchase, including acquisition by devise, but could not inherit from either an alien ancestor or a citizen. Revisers' preliminary note to former Real Property Law. At common law an alien acquiring lands by purchase, obtained a good title thereto as against all but the state, and one defeas- ible by the latter only by legal proceedings. But, upon the death of the alien purchaser, the title of the state became at once 6 82 PRACTICAL REAL ESTATE LAW. perfect by escheat, without any proceedings whatever. The residence of the alien made no difference in either case. Goodrich v. Russell, 42 N. Y. 177. 3. By statute prior to 1845. L. 1825, ch. 307, passed April 21, 1825. Aliens may take and hold real estate the same as citizens, providing they make depo- sition before the chancellor that they intend to become citizens ; but they cannot demise or lease the same until they are natural- ized. Such depositions must be recorded in the office of the secretary of state. Until the filing of such deposition they cannot take by devise, descent or conveyance. L. 1826, ch. 297, passed April 18, 1826. An alien who has purchased real estate may hold the same if he files a deposition within one year. Every grant, devise, contract and mortgage by an alien after filing deposition, who shall die within six years after such filing, is as valid as if made by a citizen; and, upon his death intestate, his real estate descends the same as if he were a citizen. R. S., pt. 2, ch. 1, tit. 1, art. 2. A resident alien may take, hold and convey within six years upon filing deposition; but cannot hold lands previously acquired. Lands descend upon the death of an alien intestate during the six-year period. R. S., pt. 2, ch. 6, tit. 1, § 4 (Statute of Wills). Every devise to an alien not authorized to hold real estate shall be void. The Revised Statutes provide that no person should be pre- cluded from inheriting because of the alienage of his ancestors. This changed the common law requirement of "inheritable blood." And the result was that even if it was necessary for the claimant, being himself a citizen, to trace relationship back through alien heirs to the first taker, he would nevertheless take, so long as this did not involve the transmission of the title, but only relationship, through disqualified aliens. McCarthy v. Marsh, 5 N. Y. 263. McLean v. Swanton, 13 N". Y. 535. Naturalization has no retroactive effect.-— It is a condition and the subject then only begins to have and enjoy whatever pertains to his new character. It is not of the common law, but ALIENAGE. 83 is purely statutory. Held, therefore, that L. 1843, ch. 87, did not operate to enable resident aliens to take and hold lands by descent from a person who died prior to the passage of that act. The Alienage Act of 1825 (ch. 307), § 1 (reenacted by R. S., pt. 2, ch. 1, tit. 3, art. 2) provided: "An alien shall not be capable of taking or holding any lands or real estate which may have descended ... to him previously to his having become such resident . . . and made such affidavit or affirmation as aforesaid." Heney v. Brooklyn Benevolent Society, 39 N. Y. 353. 4. Under Act of 1845. L. 1845, ch. 115, passed April 30, 1845. § 1. Alien residents who acquired before filing depositions, may, on filing same, hold as citizens. § 2. Wife of alien resident who has taken and died, or who may take and die, is entitled to dower. § 3. Alien woman, marrying citizen, takes dower. § 4. Heirs of deceased resident aliens may take and hold real estate : but if males, they must file depositions. § 5. Devisee or grantee of resident alien may hold, but if male, must file deposition. § 6. Resident alien who files deposition and hereafter takes real estate, may grant or devise same to a citizen or resident alien; but male alien must file deposition. § 7. Alien resident woman may take by devise from her husband. § 8. Alien resident woman may make a marriage settlement. Amended by L. 1874, ch. 261, passed April 27, 1874. Author- izes heirs of a deceased citizen to take, whether citizens or aliens. Amended by L. 1875, ch. 38, passed March 3, 1875. Includes devisees being of the blood of the testator. Under L. 1875, ch. 38, a nonresident alien of the blood of a naturalized citizen could take land by devise from him, although the alien neve-r filed his declaration of intention to become a citizen. The state alone could question his title, and it was good until so attacked. Smith V. Smith, 70 App. Div. 286, 74 N. Y. Supp. 967. 84 PRACTICAL BEAL ESTATE LAW. It was otherwise, however, if the devisee was not of the testa- tor's blood. Marx V. McGlynn, 88 N. Y. 357, 376. Under the act passed in 1845, an alien resident might take and hold as against everyone except the state, and against it, on filing a deposition of his intention to become a citizen. Also he might transmit title by descent to his heirs, whether aliens or not; provided only that if such heirs were male aliens over twenty-one years of age, they must have filed depositions, in order to hold as against the state; but as against all other persons, they held absolutely without filing depositions. Goodrioh v. Eussell, 42 N. Y. 177. Note that female alien heirs ivere not required to file depositions m order to take. L. 1845, ch. 115, enabled alien heirs of alien resident to take, but did not allow alien heirs of citizens to take. This was remedied by L. 1874, ch. 261. Both statutes construed in Luhrs V. Eiiher, 80 N. Y. 171, 177. The Alienage Act, L. 1874, ch. 261, was retroaxJtive, and vested the state 's title in the alien heirs. Criswell v. Noble, 61 Misc. 483, 113 X. Y. Supp. 954. Escheat. — Upon the death of an alien who had inherited real estate from a citizen under the act of 1845 and amendments, without having filed a declaration of intention, an immediate escheat is effected. MeCormack v. Coddington, 184 N. Y. 467, 77 N. E. 979, rev'g 109 App. DiT. 741, 96 N. Y. Supp. 571. Inheritance from nonresident alien. — ^Lands in this state inherited in 1876 by a nonresident alien from a naturalized citizen, who acquired by purchase, could not be inherited in 1888 from such nonresident alien by his nearest descendent who was also a nonresident alien. Stewart v. Russell, lfi4 N. Y. 601, 77 N. E. 983. As to devises under act of 1845, see Hall v. Hall, 81 N. Y. 130. ALIENAGE. 85 Real estate acquired by purchase and by descent. — Prior to the former Eeal Property Law, the real estate of an intestate acquired by purchase passed to his heirs alike, including resi- dent citizens and nonresident aliens; but his real estate acquired by descent passed to his resident citizen heirs, to the exclusion of his nonresident alien heirs. Callaihan v. O'Brien, 72 Hun, 216, 25 N. Y. Supp. 410. British subjects could inherit from a United States citizen in 1870; but if they died without filing a deposition, their interests escheated to the state of New York. The nonresident heir of a nonresident alien could not inherit. Stappenbeck v. Mather, 73 Misc. 434, 133 N. Y. Supp. 482. 5. Under Act of 1893. L. 1893, ch. 207, in effect March 24, 1893. The alien heirs or devisees of a citizen, whether they are resi- dents or nonresidents, may take and hold his real property without filing any deposition. This was repealed by former Eeal Property Law, in effect October 1, 1896. 6. From 1896 to 1913. Former Real Property Law, L. 1896, ch. 547, in effect October 1, 1896. § 4. Deposition of resident alien is required to be recorded in the office of the secretary of state. (Real Property Law, § 12.)- § 5. Alien may, for six years after filing deposition, take, hold, convey and devise real property. Also prior grants are valid; but no devise is valid unless he files deposition within one year from the death of the testator. (Real Property Law, § 13.) § 6. Citizen woman marrying an alien may take and convey real estate, and so may her descendants. Amended by L. 1897, ch. 756, providing that title must be acquired from a citizen, and that the woman must be bom a citizen. (Real Property Law, §14.) The former Eeal Property Law repealed all existing laws 86 PEACTICAL REAL ESTATE LAW. relating to aliens taking, holding, conveying and transmitting real estate. Haley v. SheridaJi, 190 N. Y. 331, 83 N. E. 296. Between 1896 and 1913, nonresident aliens were unable to take,' hold, devise or transmit ly descent real property within the state of New York; excepting in the case of a woman under former Real Prop- erty Law, §" 6, and under treaties with foreign countries, and the Bed- procity Act folloiving. The Reciprocity Act.— L. 1897, ch. 593, in effect May 19, 1897. "Any citizen of a state or nation which, by its laws, confers similar privileges on citizens of the United States, may take, acquire, hold and convey lands or real estate within this state, in the same manner and with like effect as if such person were, at the time, a citizen of the United States. ' ' This was incorporated into Eeal Property Law, § 10, subd. 2, and was repealed by L. 1913, ch. 152. An alien holding real property pursuant to the privileges conferred by this act, has the same title as if he were a citizen, and can transmit it to his heirs upon his death in the same way. Haley v. Sheridan, 190 N. Y. 331, 83 N. E. 296, aflf'g 114 App. Div. 903. The Reciprocity Act, L. 1897, ch. 593, is to be read with § 6 of the Real Property Law of 1896, and was intended to embrace the right to transmit lands by inheritance, although such right is not expressly mentioned therein. Haley v. Sheridan, 107 App. Div. 17, 94 N. Y. Supp. 864. • This act brings into importance the laws of the various countries regarding the rights of aliens to inherit therein. The report of the commissioners of statutory revision on the former Real Property Law has collated many of these foreign laws. See Appendix No. 2 of Fowler, Real Property Law of New York (3d ed.), pp. 1196-1200. ■ Under the Reciprocity Act (L. 1897, ch. 593), the laws of foreign countries must be actually proved in partition, or the aliens will be cut off. Where some of the heirs are aliens, and cannot inherit, their shares go to the other heirs who can take, and not to the state. Douglass T. Douglass, 70 Misc. 412, 128 N. Y. Supp. 912. ALIENAGE. 87 The English statute, giving aliens the same rights to inherit, hold and dispose of real estate, as British subjects, 33 Vict., ch. 14, p. 166, is given in full in Fay v. Taylor, 31 Misc. 32, 63 N. Y. Supp. 572. But Australians do not come under the Reciprocity Act, because the laws of Australia do not allow foreigners to inherit real estate here. Since 1897, French citizens have the same capacity to take and hold real property here as our citizens have. Geofroy v. Riggs, 133 U. S. 358. A NONEESiDENT ALiEx could tahe title in 1906 subject to possibility of the state lalcing from him, and his inability to transmit it by descent or devise. 7. Under Act of 1913. L. 1913, ch. 152, in effect April 1, 1913. Real Property Law, § 10, subd. 2, amended to read as follows : "Alien friends are empowered to take, hold, transmit and dis- pose of real property within this state in the same manner as native-born citizens." Real Property Law, §§ 12-14, repealed. Decedent Estate Law (L. 1909, ch. 18), § 13, relative to devises to aliens, was repealed by L. 1913, ch. 153, in effect April 1, 1913. The act of 1913 was not retroactive. 'Alien fbiends " mean all peoples with whose nations we are not at war. Consequently, since April 1, 1913, questions of alienage do not affect real estate titles at all, except as to Germans and Austrians with whose nations we are at war. 8. Effect of legislative grant. Effect. — A legislative grant to a man and his heirs, enables his heirs to inherit from him, even though he is an alien. Jackson v. Etz, 5 Cow. 314. Goodell V. Jackson, 20 Johns. 693. 9. Title through aliens not to be questioned. L. 1872, ch. 141, providing that no person capable of inherit- ing, shall be precluded from inheriting by reason of the alienage of any ancestor, means a deceased, not a living, ancestor. People V. Irvin, 21 Wend. 128. Decedent Estate Law (L. 1909, ch. 18), § 95. 88 PRACTICAL EEAL ESTATE LAW. Feom veey eaelt times, tliose who took title from alien purchasers were relieved hy statute from a subsequent liability to he divested of such title hy Hie state. Statutes.— The title to real property of any person entitled to hold the same, cannot be questioned or impeached by reason of the alienage of any person through whom such title may have been derived. L. 1802, ch. 49, § 3; L. 1807, ch. 123, § 2; 1 R. S. 719; L. 1845, ch. 115, § 9j li. 1857, ch. 576; § 1; L. 1868, ch. 513, § 1; L. 1873, ch. 141, §§ 1, »; L. 1873, ch. 358, § 1; L. 1875, ch. 336, § 1; L. 1877, ch. Ill, § 1; Former Real Property Law, S 7; Real Property Law, S 15. 10. Its effect on trusts. "There is no objection to the execution of a trust by an alien excepting that which arises from his incapacity to hold lands." Ihike of Cumherland v. Graves, 7 N. Y. 305. The fact that the beneficiary is also an alien makes no dif- ference. Hayden v. Sugden, 48 Misc. 108, 123, 96 N. Y. Supp. 681. Equitable conversion. — "A devise or conveyance of lands to a citizen in trust to sell the same as soon as practicable and pay over the proceeds of the sale to an alien is not invalid, as the principle of public policy which prohibits an alien from holding lands here without the consent of the state does not apply to such a case." The theory is that the lands were equitably con- verted into personalty, which can be taken and held by an alien. Anstice v. Brown, 6 Paige 448, 454. Testamentary trustee. — Under Code of Civil Procedure, § 2564, as amended by L. 1914, ch. 443, a nonresident alien can- not hold as testamentary trustee. But the act is not retro- active. Matter of Ripley, 101 Misc. 465, 167 N. Y. Supp. 162. 11. Of woman. Citizen by marriage. — ^An alien woman by her intermarriage with a citizen becomes herself a citizen by virtue of such mar- ALTERATION. 89 riage, and capable of taking and holding lands in this state by purchase or descent. 10 U. S. statutes at Large, 604. R. S., pt. 2, ch. 1, tit. 1. § 8. Luhra v. Eimer, 80 N. Y. 171. A woman possessing the capacities, such as race and blood, to become a citizen, becomes a citizen by her marriage to one. Halsey v. Beer, 53 Hun 366, 5 N. Y. Supp. 334. The foreign bom wife of a nonresident alien cannot be natural- ized. In re Rionda, 164 Fed. 368. Dower. — The alienage of a wife does not prevent her from being entitled to dower in real property of the fee of which her husband died seized. Sutliflf V. Forgey, 1 Cow. 89, aff'd 5 Cow. 713. An alien widow is entitled to dower in lands in this state of which her husband died seized. Sutliflf V. Forgey, 1 Cow. 89, aff'd 5 Cow. 713. A citizen woman's marriage to an alien does not affect her real property rights here. L. 1872, ch. 120; former Real Prop- erty Law, § 6; and Real Property Law, § 14. The latter was repealed by L. 1913, ch. 152 (when all alienage disabilities were entirely removed). L. 1889, ch. 42. Foreign bom children of a citizen woman who marries an alien can inherit from or through her. And the woman can take as though she were a citizen. *ALTERATION. Made in a deed after execution, without the consent of all of the grantors therein, is ineffective to vest a perfect title. stone V. Lord, 80 N. Y. 60, 63. * See also Moore on Fraudulent Conveyances. 90 PRACTICAL EEAL ESTATE I^W. Name of town.— The alteration of an assignment of a sheriff's certificate of sale after execution and delivery, by erasing the incorrect name of the town wherein the property is situated, and inserting the true name, held not material, and not to avoid the assignment. People ex rel. Newell v. Muzzy, 1 Denlo 239. The legal effect of the alteration of sealed instruments is fully considered in the opinion and footnote to Waring v. Smyth, 2 Barb. Ch. 119. ANCESTOR. (See Descent.) ANCIENT LIGHTS. (See Easements.) AND (See Construction.) ANNUITIES. Annuities do not suspend the power of alienation. Herzog v. Title Guarantee and T. Co., 177 N. Y. 86, 69 N. E. 283. A true annuity may be alienated, anticipated or released; and the fee is not tied up or restricted by its being charged on the land. Fowler, Real Property Law of New York (3rd ed.), p. 314. Hobson V. Hale, 95 N. Y. 588. The bequest of an annuity to be paid by trustees, does not suspend the power of alienation of the lands upon which it is charged, even during the lifetime of the annuitant; since, by releasing to the persons entitled in remainder or reversion, he ANTE-NUPTIAL. 91 may extinguish the trust, or may unite with them and the trustee in conveying an absolute fee to a third person. Lang V. Eopke, 7 Super. (5 Sandf.) 363, 371. An annuity is a legacy and not a trust; and should be paid by the executors out of the estate, and not out of the income thereof. Matthews v. Studley, 17 App. Div. 303, 45 N. Y. Supp. 201, aff'd 161 N. Y. An annuity given directly to a legatee and charged on real or personal -estate, is not property held in trust for the legatee ; but is an absolute legacy, the payment of which may be enforced by creditors. DeGraw v. Clason, 11 Paige 136. An annuity does not possess any element of a trust; and where an executrix is directed by will to invest a certain sum in the purchase of an absolute annuity, the annuitant may elect to take the capital sum, instead of having it invested for the pur- pose of providing for the annuity. Eeid V. Brown, 54 Mise. 481, 108 N. Y. Supp. 27. An annuity is a legacy of the sum required to purchase it; and the annuitant may take the capital sum thereof. Matter of Cole, 219 N. Y. 435, 114 N. E. 785. An annuity in lieu of dower was held to be a life estate, in considering a question of illegal suspension, even though the widow refused the bequest, and elected to take her dower. Peoples Trust Co. v. Flynn, 49 Misc. 62, 90 N. Y. .Supp. 421; 106 App. Div. 78, 94 N. Y. Supp. 436. ANTE-NUPTIAL. An ante-nuptial settlement made before the Revised Statutes, where the whole equitable interest is in the wife, is ended by the death of the husband before that of the wife. She is then entitled to a conveyance of the legal estate by the trustees; and upon such conveyance to her, she can convey a good title, McWhorter v. Agnew, 6 Paige 111. 92 PRACTICAL EEAL ESTATE LAW. Such a settlement of subsequently acquired property will, in the absence of some expression to the contrary, be limited to the property acquired during the intended coverture, since the primary object is to prevent the property from falling under the sole contol of the husband. Therefore, it wiU not cover prop- erty acquired after the husband's death by the wife. Borland t. Wdch, 162 X. Y. 104, 56 X. E. 556. An ante-nuptial contract made in a foreign state, by which a husband releases his curtesy right, is valid and enforceable here. White V. White, 20 App. Div. 560, 47 N. Y. Supp. 273. An ante-nuptial contract of a woman that she will not claim her dower in the event of her intended marriage, unless founded upon the consideration of some provision for her in lieu of dower, will be ineffectual both in law and equity. Curry v. Curry, 10 Hun 366, 3€9. The pecuniary provision provided must be something which she can take and enjoy after the death of her husband, — to take effect in possession or profit immediately on his death. Cram v. Cavana, 36 Barb. 410, 413; 62 Barb. 109. An ante-nuptial contract barring dower will not be supported by a nominal consideration. Graham v. Graham, 67 Hun 329, 22 X. Y. Supp. 299, aff'd 143 X. Y. 573. Agreement to make a will. — An ante-nuptial agreement whereby the intended husband agreed, in consideration of mar- riage, to make a will in favor of his affianced wife, becomes executed by the marriage and the execution of the will. The will, under these circumstances, becomes irrevocable. Adams v. Sivift, 169 App. Dir. 802, 155 X. Y. Supp. 873. APPEAL. (See Action.) AEBITRATION. 93 APPEARANCE. (See Action.) APPOINTMENT. (See Power.) ♦ARBITRATION. (See Jurisdiction.) Claim to real estate. — No submission to arbitration ' ' shall be made, respecting the claim of any person to any estate, in fee or for life, to real estate. ' ' 2 R. s., § 2. Wiles V. Peck, 26 N. Y. 42. German v. Machin, 6 Paige 288. This statute was repealed by L. 1880, ch. 245, but was re- enacted as Code of Civil Procedure, § 2365. Submission by municipal corporation. — A submission to arbitration may be made by a municipal corporation, by a reso- lution or ordinance adopted at a meeting thereof. It need not be under seal. Brady v. Mayor of Brooklyn, 1 Barb. 584. Agreement, to exclusion of courts. — Where parties undertake by independent covenant or agreement to provide for an adjust- ment and settlement of all disputes and differences by arbitra- tion, to the exclusion of the courts, such agreement is void and does not stand in the way of a recovery. Seward v. City of Rochester, 109 N. Y. 164, 16 N. E. 348. WyckofF V. Woapms, 118 App. Div. 699, 706, 103 N. Y. Supp. 650. But it seems that when the parties in their contract fix upon a certain mode in which a certain fact is to be ascertained, such as the amount to be paid, such a clause is enforceable. Hamilton v. Liverpool and London and Globe Ins. Co., 136 U. S. 242. •See also Bliss' Code of Civil Procedure (6th ed.), and Supplement, 1919; Parsons' Code of Civil Procedure; see NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 32, p. 504. 94 PRACTICAL REAL ESTATE LAW. Consideration. — When a real controversy is submitted to arbi- tration, it is mutual and based upon a sufficient consideration. An agreement to postpone the closing of a title and referring its validity to a title company, may be enforced as an arbitra- tion. Green-Shrier Co. v. btate Realty and Mtge. Co., 199 N. Y. 65, 92 N. E. 98, rev'g 129 App. Div. 581, 114 X. Y. Supp. 49. An umpire is vastly different from an arbitrator. — Where an umpire has been appointed, and in consequence of a disagree- ment of the arbitrators, has entered upon the performance of his duties, the authority to make the final decision vests abso- lutely in him, and the original powers of the arbitrators have ceased to exist. The umpire is not bound to meet with or consult the arbitrators at all. Lyon y. Blossom, 11 Super. (4 Duer) 318. Sec also " Jueisdiction." ARMORIES. (See Military Law.) AS. Teustee. — "As " sometimes becomes an important word in convey- ancing. A conveyance is frequently made to one trustee for another, without the word as, with an habendum in fee in the usual form. When an investigation discloses no actual trust, the title, to be safe, should be made in both ways, that is, by talcing a deed from the alleged trustee and his wife and the alleged cestuis. A deed to a person as trustee puts the examiner upon inquiry as to the actual facts and circumstances surrounding the transaction; and he must get all of the information possible. The use of the words " in trust for " or " for the use of " makes no difference in the construction of the instrument. A mortgage to a trustee without the word as, can be released by the trustee, although he is not described as trustee; and ihc beneficiaries. AS. 95 even though they are named in the mortgage, need not join in the release. A conveyance to one as trustee for another, is only a passive trust; and the Statute of Uses and Trusts vests the title in the beneficiary, who can convey good title. No trust being stated in the deed, there is no presumption that there is a valid trust by a separate instrument. Seidelbach v. Knaggs, 44 App. Div. 169, 60 N. Y. Supp. 774, aff'd 167 X. Y. 585. The word "trustee" without the word "as," is descriptio personae. Title G. & T. Co. v. Fallon, 101 App. Div. 187, 91 N. Y. Supp. 497. In case of a conveyance to one as trustee for another, no trust appear- ing, both must convey to make a good title. A deed to one "as trustee" for another, which contains no clause imposing any active duty on the trustee, vests both the legal and equitable title in that other. Blewitt V. Olin, 15 Daly 122, 3 N. Y. Supp. 936. A deed to one as trustee of an undisclosed trust, estops the grantor from claiming title. In such case, a deed from the trustee conveys a good title, because the presumption is that the trust is valid rather than invalid. People V. stock Brokers' Bldg. Co., 49 Hun 349, » N. Y. Supp. 113, aff'd 112 N. Y. 670. King V. Townshend, 141 N. Y. 358, 363, 36 N. E. 513. Where, in a deed, the word ' ' trustee ' ' is added to the name of the grantee, but there is no declaration of trust, and the con- veyance is not to him as trustee, said words, in the absence of evidence other than the deed, may be regarded as merely descriptio personae; and if it appears that the grantee was a trustee, but the conveyance is to him and "to his successors and assigns" absolutely, with no disclosure of the object of the trust, a grantee from him takes good title. Greenwood Lake and P. J. R. R. Co. v. Greenwood Lake R. R. Co., 134 N; Y. 435, 21 N. E. 874. A conveyance to two persons "trustees of " a person, conveys 96 PRACTICAL REAL ESTATE LAW. the title to the grantees individually; and the fact that the habendum is to them, their "successors and assigns," makes no difference. No trust appearing upon investigation, a deed from the three grantees for $1 conveys a good title. Kanenbley v. Volkenberg, 70 App. Div. 97, 75 N. Y. Supp. 8. The grantees in a deed were three individuals, "trustees of the Methodist society and their successors," granting and habendum clauses to them, "their heirs and assign forever." Held, that the statement "trustees, etc." was merely descriptio personarum. Towar t. Hale. 46 Baib. 361. A conveyance to persons, executors, without the word as. — The word "executors" must be treated as descriptio personae, and the grantees take only an undivided interest, even though the property was purchased with moneys of the trust estate. Pfeiffer v. Eheinfrank, 2 App. Div. 574, 37 N. Y. Supp. 1076. This is a radical case and should he followed sparingly. The word "as" was omitted by an executor suing in his rep- resentative capacity. Held, that the form, averments and scope of the complaint were sufficient to affix to him such standing and character in the litigation. Beers v. Slhannoii, 73 N. Y. 292, 297. ASSESSMENTS. (See Taxes.) ASSIGNMENT FOR CREDITORS. *ASSIGN]yiENT FOR CREDITORS. 1. In general. 2. The acknowledgment. 3. Construction of statutory provisions. 4. Insolvent's discharge. 5. Who can make. 6. Recording. 7. Vesting of title. 8. Void provisions. 1. In general. An assignment is an act of bankeuptcy, and it may be avoided hy filing a petition in bankruptcy within four months after the assign- ment is filed in the county clerk's office and recorded in the register's office. Therefore it is not safe to accept title from the assignee until the four months' period has elapsed and no petition in bankruptcy has been filed against the assignor. Is avoided by a bankruptcy instituted within four months, in which the assignor is adjudicated a bankrupt. Gilbert v. Mechanics and Metals Nat. Bank, 172 App. Div. 25, 157 N. Y. Supp. 953. A general assignment, although fraudulent, is an act of bank- ruptcy; and is available as such if made within four months before the petition in bankruptcy is filed. Whittlesey v. Becker & Co., 142 App. Div. 313, 126 N. Y. Supp. 1046. In passing a title theough an assignment the examiner should ascertain that the assignment is in force at the time of the conveyance. If the creditors have been paid, and the property conveyed to the as- signor by an unrecorded deed, the assignee's conveyance is ineffectual. It is desirable but not necessary that the assignee obtain an order of court to sell. Recitals in a conveyance by the assignee to the assignor, that all the creditors have been paid, are not binding upon the *See also Collier on Bankruptcy (11th ed.) ; Bliss' Code of Civil Procedure (6th ed.), and Supplement, 1919; Parsons' Code of Civil Procedure. 7 98 PEACTICAL EEAL ESTATE LAW. creditors; and a subsequent purchaser must ascertain at his peril that the creditors have in fact been paid. An assignee has no power to mortgage the assigned property. Briggs V. Palmer, 20 Barb. 392, mod. by 20 N. Y. 15, 21 N. Y. 574. When a voluntary grantee of an insolvent grantor, in pur- suance of a verbal understanding had at the time of the deed, gives a mortgage to secure the payment of specific debts of the grantor, the mortgage is good. Eoyer Wheel Co. v. Fielding, 101 N. Y. 504, 5 N. E. 431. Davis V. Howard, 73 Hun 347, 351, 26 N. Y. Supp. 194. Birdsall, W. & P. Mfg. Co. v. Schwarz, 3 App. Div. 298, 302, 38 N. Y. Supp. 368. The several assignees take as joint tenants; and all must unite in conveying; and all must give bonds beforehand. When made to three assignees, all of whom accept, but one refuses to act and to file a bond, and notifies his co-trustees that he resigns, the other two cannot convey real estate without having him removed by order of court. Brennan v. Willson, 7 Daly 59, aff'd 71 N. Y. 502. Substituted assignee. — The county court has the power to appoint a substituted assignee under L. 1877, ch. 466, § 25. (Now Debtor and Creditor Law, L. 1909, ch. 17, § 25.) Rogers v. Pell, 166 X. Y. 565, 66 N. E. 265. When an assignee has died^ and twenty-five years have not elapsed since the assignment^ title cannot be made luithout the appointment of a new assignee; and a prior mortgage cannot he properly foreclosed with- out such appointment. An assignee for creditors joined in a foreclosure action indi- vidually only, and not as assignee, is bound by the judgment if he had no other interest. Wagner v. Hodge, 34 Hun 5Zi, aflF'd 98 N. Y. 654. Sales approved by advisoey committee. — A certain assignment for creditors provided that all sales should he approved hy an advisory committee. This was not a case where the execution of the power re- quired a written consent endorsed on the instrument hy which the power was exercised. However a purchaser is entitled to record evi- dence that such consent was actually given. ASSIGNMENT FOE CEEDITOES. 99 An unrecorded but delivered deed takes precedence of a general assignment for creditors; because the assignee is not a purchaser for value within the Recording Acts. Griffin v. Marquardt, 17 N. Y. 28. A voluntary assigmnent by a debtor residing in another state or country, valid where made, and not invalidated by any law of this state", conveys the debtor's property in this state. Ockerman v. Cross, 54 N. Y. 29. (The property in this case, however, was personal property only.) Exchange qf real estate by assignee. — An assignee for creditors cannot, even with the consent of the courts exchange real estate for other real estate; particularly where the property received in exchange exceeds the other in value, thus necessitating the giving hy the assignee of a purchase money mortgage for $5000. Sale of real estate by assignee. — Under L. 1913, ch. 360, and L. 1915, ch. 469, amending the Debtor and Creditor Law (L. 1909, ch. 17), an assignee for creditors cannot sell the assets of the estate at public auction without an order of court on notice to creditors. Matter of Gurian, 93 Misc. 296, 155 X. Y. Supp. 930. 2. The Acknowledgment. Written acknowledgment a prerequisite. — ^A written acknowl- edgment adequate to meet the requirements of the statutes of this state, is a prerequisite to the passing of title to the property covered by a general assignment for the benefit of creditors. Rogers v. Pell, 154 N. Y. 518, 49 X. E. 75. A proof by subscribing witness is not sufBcient. Cook V. Kelly, 12 Abb. Pr. 35, aff'd 14 Abb. Pr. 466. It can be made by an attorney in fact. Lowenstein v. Flaurand, 82 N. Y. 494; overruling Adams v. Houghton, 3 Abb. Pr. N. S. 46. 3. Construction of statutory provisions. Assent of assignee. — The statutes, L. 1877, ch. 466, and L. 1888, ch. 294, provide that the duly acknowledged assent of the 100 PRACTICAL EEAL ESTATE LAW. assignee must be appended or endorsed; otlierwise it can be set aside. Rennie v. Bean, 24 Hun, 123. The assent of the assignee is sufficiently evidenced by his execution of the assignment, as the statute prescribes neither the form nor place of such assent. Scott T. Mills, 45 Hun 263, aflPd 115 X. Y. 376, 22 N. E. 156. Reverter. — The trust ends after twenty-five years, and the estate then remaining in the assignee reverts to the assignor by the provisions of L. 1875, ch. 545. This act applied to prior assignments and was a statute of limitations. Kip V. Hirsch, 103 N. Y. 565, 9 X. E. 317. Residence and business of assignor. — The statutory provisions that the assignment must state the residence and business of the assignor, are directory merely. No penalty or consequences are provided for the failure to so state. • Ihitohesa County Miit. Ins. Co. v. Van Wagonen, 132 X. Y. 398, 30 N. E. 971. Schedule. — The statutory provision requiring the debtor to file a schedule of his assets and liabilities, is directory only; and the failure to do so does not avoid the assignment. Evans v. Chapin, 12 Abb. Pr. 161, 20 How. Pr. 289. Juliand v. Eathbone, 39 Barb. 97, aff'd 39 N. Y. 369, v 4. Insolvent's discharge. Proceedings in county court. — The Debtor and Creditor Law (L. 1909, ch. 17), art. 3, provides for the discharge from his debts of an insolvent debtor by proceedings in the county court. Discharge of judgments. — An insolvent, when discharged, can apply for the discharge of judgments against him under Code of Civil Procedure, § 1282 (now Debtor and Creditor Law, L. 1909, ch. 17, § 83), upon proper notice to the owners of the judgments. But the order discharging the judgments may be vacated if no notice was given to the judgment creditors. Wheeler v. ifimmeluth, 121 M. V. 241, 24 N. K 285. ASSIGNMENT FOR CREDITOM ^, , 101 Recital of proceedings in deed.— A deed by tlie owner for a consideration of $1, reciting insolvency proceedings and an order of the county jndge directing the giving of it, makes a prima facie title without proving the proceedings. Such proceedings need only be shown to give effect to deeds given by persons in whom the title is not vested. Rockwell V. Brown, 54 N. Y. 210, rev'g 42 How. Pr. 226, 33 Super. (1 J. & S.), 380, 11 Abb. Pr. N. S. 40:\ 5. Who can make. Any stock corporation except a banking, insurance or rail- road corporation, can assign for creditors, without preferences. stock C!orporation Law (L. 1909, ch. €1, § 66, former Stock Corporation Law, L. 1890, ch. 564, § 48, as amended by L. 1892, ch. 688). An insurance company organized under L. 1853, ch. 466, § 13, may make a valid general assignment for the benefit of credi- tors; but without preferences. But the assignee gets only the assets, and not the franchise or any of the corporate powers. Hurlbut V. Carter, 21 Barb. 221. A religious corporation has the power, with the consent of the court of chancery, to make an assignment for creditors; and its assignment under its corporate seal will vest in the assignee the legal title to its real estate. DeEuyter v. Trustees of St. Peter's Church, 3 Barb. Ch. 119, aff'd 3 N. Y. 238. 6. Recording. In county clerk's and register's offices. — The statute requires recording in the county clerk's office; but it is not constructive notice of a conveyance unless it is recorded in the register's office as well, because the record there is the only kind of con- structive notice provided by the Recording Acts. The record in the county clerk's office is not notice even to a purchaser who knew of the assignment. Simon v. Kaliske, 31 Super. (1 Sweeny), 304, 6 Abb. Pr. N. S. 224. Wagner v. Hodge, 34 Hun 524, aff'd 98 N. Y. 654. 7. Vesting of title. All property of assignor conveyed. — The assignment, in the 102 PRACTICAL REAL ESTATE LAW. ordinary form, operates to convey all of the property of the assignor, whether mentioned in the assignment or not. Piatt V. Lott, 17 N. Y. 478. When title vests.— Title vests in the assignee upon delivery of the assignment, even before it is recorded. NicoU V. Spowers, 105 N. Y. 1, 11 N. E. 138. ' Dutchess County Mut. Ins. Co. v. Van Wagonen, 132 N. Y. 398, 402, 30 N. E. 971. Title vests in the assignee immediately upon the execution and delivery of the assignment; but he cannot convey a good title to the real estate until he has filed his bond. L. 1860, ch. 348, § 3. (The remarks in Juliand v. Rathbone, 39 N. Y. 369, are obiter.) Brennan v. Willson, 71 N. Y. 506, 4 Abb. N. C. 270. Thrasher v. Bentley, 2 T. 4. C. 309, 311, aff'd 59 N. Y. 649, 1 Abb. N. S. 39. Produce Bank v. Morton, 07 N. Y. 109. Hedges v. Bungay, 3 Hun 594, 6 T. &. C. 304, 16 Abb. Pr. N. S. 313. The failure of the assignee to record the assignment and file his bond, does not prevent the title from vesting in him. Matter of Berman, 173 App. Div. 689, 160 N. Y. Supp. 79. 8. Void provisions. Assignee not liable for loss. — An assignment containing a provision that the assignee shall not be liable for any loss sus- tained by the trust property, unless occasioned by his gross negligence or wilful misfeasance, is void by reason of such pro- vision. Litchfield v. White, 7 N. Y. 438. Authorizing assigner to sale on credit. — An assignment con- taining a provision authorizing the assignee to sell on credit, is fraudulent and void as to judgment creditors. Nicholson v. Leavitt, 6 N. Y. 510. But such an assignment is valid as against the assignor; con- sequently the defect cannot be cured by a subsequent assign- ment. Porter v. Williams, 9 N. Y. 142, ATTACHMENT. 103 ASSIGNMENT OF MORTGAGE. (See Mortgage.) ASSOCIATION. (See Joint-Stock Company; Unincorporated Association.) *ATTACHMENT. In general. — A warrant of attachment is a provisional remedy granted pendente lite by the court under Code of Civil Procedure, § 636. Levy upon real estate is made by filing with the country clerh a notice of the attachment, stating the names of the parties to the action. the amount of the plaintiff's claim, and a description of the real estate levied upon. This is indexed as a lis pendens under Code of Civil Procedure, § 649. For cancellation thereof see Code of Civil Pro- cedure, § 711. If the plaintiff recovers judgment, he may then cause the premises attached to be sold by the sheriff on execution, free from any right, title, interest or lien accruing subsequent to the filing of the notice. The examiner should ascertain what disposition was made of the action; and if it resulted in a judgment, followed by a convey- ance by the sheriff under execution, he should ascertain that the defend- ant was properly served in the action. Sudi a sale does not affect an inchoate dower right; and is the only method of making title by sheriff's sale on execution where the defendant is served otherwise ihun person- ally within the state, or by publication. The thirty days time for service prescribed by the Code of Civil Procedure, § 638, after the granting of the order, cannot be extended by the court. Jones V. Fucha, 106 App. Div. 260, 94 2Sr. Y. Supp. 57. ATTORNMENT. (See Lease.) * See also Bliss' Code of Civil Procedure (6th ed.), and Supplement, 1919; Parsons' Code of Civil Procedure. 104 PEACTICAL EEAL ESTATE LAW. *ATTORNEY AT LAW., The duty of an attorney employed to examine a title, is to ascertain and report liens, but not to satisfy them. Josephthal v. Heyman, 2 Abb. N. C. 22. Entries in attorney's register. — To prove the issuing of an execution, the entry thereof in an attorney's register, the attorney being dead, is competent. Leland v. Cameron, 31 N. Y. 115. But there is no rule of law which makes entries of a deceased lawyer in his register evidence of what other persons have done. Osborn v. Merwin, 50 How. 183. Eev'd in ano. grd. 13 Hun 332. The corporation counsel of New York city, as such, has no more power to bind his client than that attaching to the ordi- nary relation of attorney and client. An attorney has no power to stipulate not to appeal. People V. Mayor of New York, 11 Abb. Pr. 66. Liability for negligence. — An attorney who, on examining a title, passes a release of mortgage as releasing premises which it expressly excepts from the release, is liable in damages to his client for negligence. Byrnes v. Palmer, 18 App. Div. 1, 45 N. Y. Supp. 479, aff'd 160 N. Y. 699, 55 N. E. 1093. An attorney is not entitled to compensation for a foreclosure action improperly conducted. Reynolds v. Kaplan, 3 App. Div. 420, 38 N. Y. Surpp. 764. An attorney who represents to his client that a mortgage which he has obtained for him is a first lien, when it is not, is liable for the amount which his client is obliged to pay to remove the prior incumbrances which the attorney failed to discover. Fay V. McGuire, 20 App. Div. 569, 47 N. Y. Supp. 286, aff'd 162 N. Y. 644. • See also Fiero on Special Proceedings (3d ed.), and Supplement, 1919; Chamber- l^ynes ilodem Law of Evidence; see NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 4, p. 88, Bk. 19, p. 555, Bk. 31, p. 834. ATTORNEY AT LAW 105 Agent of client. — So far as regards third persons, the attorney, in conducting a suit, is the agent of his client; and the relation is only that of principal and agent. Martin v. Piatt, 51 Hun 429, 437, 4 N. Y. Supp. 359. Collection of compensation. — An attorney who has an agree- ment to receive a share of the recovery, is entitled, upon a settlement being made by his client direct, to proceed with the action to collect his compensation. Forstman v. Schulting, 35 Hun 504. An attorney for a nonresident plaintiff who has not given security for costs, is liable for them personally, under Code of Civil Procedure, § 3278; and it makes no difference if he is not the attorney who brought the action, but is only substituted. Renwick v. New Central Coal Co., 55 Super. (23 J. & S.), 444, 14 Civ. Pro. R. 114. An attorney's lien cannot be affected by any settlement of the parties; and if they do settle, and his client is not responsible, the attorney may proceed with the action for his own benefit under Code of Civil Procedure, § 66. Hart V. Mayor of New York, 69 Hun 237, 23 N. Y. Supp. 555, aff'd 139 N. Y. 610. An attorney has a lien upon a judgment wholly for costs; and the record is notice of such lien to all the parties ; and a payment of the judgment to the judgment creditor direct, is in fraud of the rights of the attorney. McGregor v. Comstock, 28 N. Y. 237. Lesher v. Roesaner, 3 Hun 217, 5 T. & C. 674. The attorney of record only has a lien for services. The counsel has none. Goodwin Film & Camera Co. v. Eastman Kodak Co., 222 Fed. 249. A proceeding to enforce an attorney's lien, is a special pro- ceeding; and the party must be served the same as with a summons in an action. Smith V. First National Bank, 103 Misc. 274, 170 N. Y. Supp. 127. Mod. 184 App. Div. 719. 106 PEACTICAL REAL ESTATE LAAV. An attorney is not allowed to permit another attorney to use his name. Penal Law (L. 1909, eh. 88), § 277. The practice of the law is not limited to the conduct of cases in court. In re Duncan, 83 S. C. 186, 65 S. E. 210. Barr v. Cardell, 173 la. 18, 155 N. W. 312. N. Y. L. J. (editorial), Jan. 22, 1916. A party has the right to change his attorneys at any stage of the proceeding, upon such terms as are fair to the attorneys. Martin v. Camp, 219 N. Y. 170, 114 N. E. 46. Matter of City of New York, 219 N. Y. 192, 114 N. E. 49. Estate of Oary, N. Y. L. J., June 11, 1918. ATTORNEY IN FACT. 107 ATTORNEY IN FACT. 1. Consideration of $1. 2. Construction and limitation of the power. 3. Execution under the power. 4. For fiduciary. 5. Recording of the power. 6. Revocation of the power. 1. Consideration of $1. The power was to "grant, bargain, sell, exchange, demise, and let for such prices or rents, and upon such terms, as to the attorney should seem meet;" and the attorney conveyed for $1. The court held that the power was general, and that the attorney had the same right to deal with the property as the principal. "It was under the power competent for the attorney to make a deed, which, importing and expressing a consideration good as between the principals and the attorney, and good to the extent of conveying a title to the grantee, was not open to inquiry by a stranger, such as the plaintiff in this case was." But the court admitted that if the power had been a limited one, the title would have been bad. Van Zandt v. Furlong, 18 N. Y. Supp. 64, 44 St. R. 384. Notwithstanding the above case, an execution for $1, makes a defec- tive title, unless a statement of consideration, in shape for recording, is procured from the grantor. 2. Construction and limitation of the power. The authoeity given ttndeb a power of attoenet must be STEiCTLY coNSTEUED, and any act substantially varying from it, is void. But a power to do a certain thing, includes the poiver to take the necessary steps to accomplish it. For instance, the power to con- vey or mortgage, includes the power to execute a deed or mortgage and to deliver it. A POWEE OF ATTOENEY BY A WIFE TO HER HUSBAND " tO transact all business for me, and to sigh deeds for me," gives authority to convey real estate. 108 PRACTICAL REAL ESTATE LAW. A power to convey was held to cover after-acquired property without a specific grant of that power in the instrument; on the ground that it was a continuing power. Finch T. Gillespie, 133 App. Div. 858, 107 N. Y. Supp. 418. The powers conferred by general words must be construed with reference to the matters specially mentioned. Rossiter v. Rossiter, 8 Wend. 494. The general words to do any act which the principal might or could do, etc., only give general powers to carry into effect the special purposes for which the power was given. Creighead v. Peterson, 72 N. Y. 279, 281. A POWER OP ATTOENET TO TWO pEEsoNs must be acted on by both; and the death of one, renders the power inoperative. The act of one attorney alone is not the act of the principal. Power of attorney to two persons is joint and not several, and the deed must be executed by both. story on Agency ( 9th ed. ) , § 42, and Franklin v. Osgood, 14 Johns. 527, 553. An assignment for creditors can be made by attorney in fact, but a will cannot. Liowenstein v. Flaurand, 82 N. Y. 494. Inchoate right of dower. — ^A power of attorney by a wife and husband together, is sufficient to authorize a conveyance of the inchoate dower of the wife, although it does not specifically mention such interest. Piatt V. Finck, 60 App. Div. 312, 70 N. Y. Supp. 74. But see also Wronhow x. Oakley, 133 N. Y. 505, 31 N. E. 521. And a power of attorney by a husband and wife to sell all " real estate owned by us," is not sufficient to authorize the release of the inchoate dower of the wife. A power by a husband and wife to sell certain specified real estate, and, in the names of both, to make and deliver good and sufficient deeds of ihe same with covenants of warranty, gives the right to release the wife's dower by necessary implication. The words " good and suffici- ATTORNEY IN FACT. > 109 ent deed " and the power to luarrant the title, cover whatever interest the sellers have. But a power by a husband and wife to sell, assign, transfer and " convey * * * any and all real estate owned by us or any part thereof," is not broad enough to authorize a release of the inchoate dower of the wife in the husband's lands. The words " owned by us " and " any part thereof" mean the land itself, and not an interest at- tached to the land. A wife can release her inchoate dower interest in her husband's real estate through him as attorney in fact. L. 1878, ch. 300; Real Property Law, § 207, Former Real Property Law, § 187. Wronkow v. Oakley, 133 N. Y. 505, 31 N. E. 521. One dealing with the attorney is bound by the terms of the power. Bumsted v. Hoadley, 11 Hun 487. The attorney cannot sell to himself through a third person. Bain v. Matteson, 54 N. Y. 663. PowEE AS TO EEAL ESTATE LIMITED. — A powcr of attorney to " sell and convey any or all real estate belonging to me, or in which I have a dower right or interest," does not give authority to sell any real estate, or interest in av^y, which the principal did not have at the time of the execution of the power. A power of attorney to sell, convey or mortgage any real estate, does not give the attorney power to exchange or to pur- chase real estate; or to contract for the principal to sell land which the principal did not own. Forman v. Berry, 163 App. Dlv. 504, 148 N. Y. Supp. 959. A power to sell does not include a power to mortgage. Wheeler v. Sigourney, 98 Misc. 150, 164 N. Y. Supp. 62. An attorney in fact cannot act after the death of the phin- cipal; because the attorney cannot be authorized to do what the prin- cipal himself cannot do. The principal can, however, relieve the attor- ney from responsibility to the estate for acts performed without knowl- edge of his death, such as paying checks and the like. 110 PEACTICAL REAL ESTATE LAW. 3. Execution under the power. In whose name. — Instruments executed through an attorney in fact, should be executed by the attorney in the prinicpal's name, per the attorney's name, appended as such. If the attorney aflSxes only his own name the deed is void. Gerard on Titles to Real Estate (5th ed.), p. 367. The execution of a deed by an attorney in fact with his own name only, is defective. Townsend v. Hubbard, 4 Hill 351. L. 1907, ch. 518, ratifies and confirms deeds executed by an attorney in fact prior to Jan. 1, 1875, nothwithstanding his omission to sign the name of his principal, where he has affixed his own signature, adding the word "attorney;" provided the deed recites that it is the deed of the principal, naming him, is acknowledged by the attorney in fact, and refers to the power of attorney, stating its place of record; and the grantee in said deed has entered into possession of the real estate under the deed. Mat not take acknowledgments. — An attorney in fact executing a deed for a party, is himself such a party -as to he disqualified from taking the acknowledgment of other parties as a notary. 4. For a fiduciary. An executor, guardian or other person acting in a fiduciary capacity, can delegate the performance of mere mechanical or ministerial acts to others by power of attorney. Such acts are the receipt of the principal of an overdue mortgage, and the execu- tion of a- certificate of satisfaction. But any act which involves the exercise of discretionary powers, cannot be so delegated. Gates V. Dudgeon, 173 N. Y. 426, 66 N. E. 116. Forbes v. Reynard, 49 Misc. 154, 93 X. Y. Supp. 1097. Under this principle, an executor can release premises from a mortgage which contains a definite release clause, by an attorney in fact. ATTORNEY IN FACT. Ill 5. Recording of the power. The Revised Statutes provide that a power of attorney need not be recorded, but may be. 1. R. S. 762, § 39. In oedeb to make a proper record of a power of attorney through which a title to real estate is made, the "power should he recorded. The lack of record of a power of attorney may be disregarded under certain contingencies. Ensign v. McKinney, 30 Hun 249, 13 Abb. N. C. 463. A power of attorney may be acknowledged and proved in the same manner as a deed. St. John V. Croel, 5 Hill 573. Adverse possession; power to execute deed not proved. — ^A deed purporting to be executed by virtue of a power of attorney from the owner of the land, which power is not proved, affords sufficient title on which to found adverse possession, if there has been a good constructive occupation under it. Munro v. Merchant, 28 N. Y. 9. Where the power of attorney is lost a recital of the power in the deed is some evidence of its existence, if the deed is over thirty years old, and secondary evidence is admissible to prove it. Ensign v. McKinney, 30 Hun 249, 13 Abb. N. C. 463. A power lost will be presumed to be regular in an ancient deed, viz. : one over thirty years old. Goodhue v. Cameron, 142 App. Div. 470, 127 N. Y. Supp. 120. Presumption of execution. — Possession for forty-four years under a deed executed by virtue of a power of attorney, reciting the same, establishes a presumption that the power of attorney was duly executed. Doe. V. Phelps, 9 Johns. 169. 6. Revocation of the power. Death of principal.— Care must be exercised, in passing a 112 PRACTICAL REAL ESTATE LAW. title through a conveyance executed by a power of attorney, to determine that the principal was living when the power was used; for the death of the principal revokes the power. Where the power of attorney authorizes the person appointed to appoint an attorney under him, and to revoke such appoint- ment at his pleasure, the death of the principal attorney neces- sarily revokes the power of the substitute. Watt V. Watt, 2 Barb. ch. 371. Effect on the power of insanity of the principal. — ^Insanity of the principal suspends or ends the authority of an agent acting under a power of attorney. Dealing with the attorney for an insane principal is no better than dealing with the insane prin- cipal himself. Merritt v. Merritt, 27 App. Div. 208, 50 N. Y. Supp. 604. Not revoked by insanity of the principal; and his attorney's transactions with persons ignorant of the insanity, are binding on the principal. Brown v. Nichols, 42 N. Y. 26, 9 Abb. Pr. N. S. 1. See also Wallis v. Manhattan Co., 2 Super. (2 Hall) 495, hold- ing that the lunacy must be judicially established in order to revoke the power. Recoeding insteument. — R. 8. provide that rno letter of attorney or other instrument, recorded, shall he deemed to he revoked by any act of the party hy whom it was executed, unless the instrument contairir ing such revocation he also recorded in the same office in which the instrument containing the power is recorded. AUCTIONEER. An entry in his book of sales, made and signed by the auc- tioneer, which does not name or describe the vendee, is suf- cient under the Statute of Frauds. Mentz V. Newwitter, 122 N. Y. 491, 25 N. E. 1044. Hagedorn v. Lang, 34 App. Div. 117, 54 N. Y. Supp. 602. AUCTIONEEE. 113 His authority to sell is revocable, even after the land is knocked down if the written contract has not yet been executed. Bryne v. Fremont Realty Co., 120 App. Div. 692, 105 N. Y. Supp. 838. The secret employment of "puffers" to enhance the price, avoids the sale. Bowman v. McClenahan, 19 Misc. 438, 44 N. Y. Supp. 482, aff'd 20 App. DIt. 346, 46 N. Y. Supp. 945. Parol evidence of statements by an auctioner before sale, adding to, or altering, the terms of sale, is admissible. Averett v. Lipscombe, 76 Va. 404. Auctioneers' bonds are made liens on real estate in cities of a million or more inhabitants only by L. 1897, ch. 682, as amended by L. 1899, ch. 239. The auctioneer of real estate is a stakeholder of the deposit money paid on the sale, and represents both parties. He should not pay it over to the seller until the title closes. Merritt v. Archer, 163 Apip. Div. 648, 148 N. Y. Supp. 1008. BAILMENT. (See Personal Property.) 114 PRACTICAL REAL ESTATE LAW. *BANK. 1. In general. 2. Foreign banks and trust companies. 3. National banks. 1. In general. When a bank is in the hands of the superintendent of banks, Sec. 19 of the Banking Lww, as Am. hy ch. 452, L. 1910, provides for the sale of its property by the superintendent or his deputy, in the name of the bank, under order of the supreme court. Sucli an order is neces- sary, even to assign a mortgage. A certificate of appointment of a deputy is to be filed in the county clerk's office. Under § 19 of the Banking Law judgments docketed against the bank after the superintendent of banks goes into possession, are not liens on its real estate. Northern Bank of New York v. Drury, 152 App. Div. 64, 136 N. Y. Supp. 608. Lafayette Trust Co. v. Beggg, 213 N. Y. 280, 107 N. E. 644, aff'g 163 App. Div. 959, 148 N. Y. Supp. 414. The satisfaction piece of a mortgage held by a bank which is in the possession of the superintendent of banks, should be executed and acknowledged in the name of the bank, by the superintendent, or by the deputy in charge, reciting his appoint- ment. It is not necessary that the bank execute it as a corpora- tion or have the corporate seal. After a sale made by the superintendent of banks under the provisions of the Banking Law, the court cannot make the sale. Matter of Superintendent of Banks, 207 N. Jf. 11, 100 N. E. 428. After the superintendent of banks takes possession of a bank, he becomes a receiver, an arm of the court, and he can do nothing without its authority. Matter of Union Bank of Brooklyn, 96 Miso. S99, 101 N. Y. Supp. 29. Under § 19 of the Banking Law, the superintendent of banks ' See also M'agee on Banks ( 2d ed. ) . BANK. 115 may purchase real estate in the name of the bank, when author- ized to do so by the supreme court. Borough Bank of Brooklyn v. Thompson, 172 App. Div. 527, 158 N. Y. Supp. 871. A CONVEYANCE BT A BANK TO ITS PEESiDENT may he possed on the ten-year Statute of Limitations. A deed to the named president of. a named hank, and a conveyance by the hank, executed by the same president, over fifty years old, can he passed. By L. 1841, p. 351 it was provided that all conveyances of real estate should he made to the president or such other officer as should he indicated by the articles of association, the word " as " was not necessary. Appointment of eeceives not mentioned in foreclosttre ac- tion. — In a foreclosure action in 1871 hy a national bank as plaintiff, it appeared from other records that before the judgment of foreclosure and sale was obtained, a receiver for the hank was appointed, but no mention was made in the suit of this fact. No question as to this could be raised collaterally to the action. The payment of a check by a bank after the death of the drawer, without knowledge of that fact, is good. Glennan v. Rochester Trust and Safe Deposit Co., 209 N. Y. 12. 102 N. E. 638. 2. Foreign banks and trust companies. Transaction of business in this state. — A banking company, organized in a foreign state, is forbidden by our laws to transact business in this state; and its contracts made here cannot be enforced by action, and are void. Pennington v. Townsend, 7 Wend. 276. A foreign trust company cannot execute a legal trust in this state; and therefore cannot convey real estate as executor or trustee. Former Banking Law (L. 1892, ch. 689), § 156, as amended by L. 1904, oh. 492. But a new trustee can he substituted hy our courts, who can convey here and turn over the proceeds to the foreign trust company. Since July 18, 1911, a foreign trust company can act as execu- tor and trustee here, provided the laws of the foreign state 116 PRACTICAL REAL ESTATE LAW. where that corporation was organized, confers similar privileges on our corporations. L. 1911, ch. 6b/, amending Banking Law (L. 1909, ch. 10), { U (now L. 1914, ch. 369, § 223). 3. National banks. The peactice is to pass the incoepoeation of a national hank upon the certificate of the comptroller of the currency at Washington that it has been incorporated. A national bank eeceivee is appointed hy the comptroller of cur- rency at Washington; and he can give a satisfaction piece of a mort- gage held by the bank. It, however, should recite the appointment, and should be accompanied by a certified copy thereof. But it is safer to have the bank officials execute the satisfaction piece also, in order to remove any possible question, — such as the register's objection to stamp- ing the record discharged. Mortgages on real estate. — Theoretically, national banks can- not take mortgages on real estate, except for antecedent debts; but practically they can do so, because the federal government alone can question such a mortgage when taken. National Bank v. Whitney, 103 U. S. 99; rev'g Crocker v. Whitney, 71 N. Y. 161. A national bank may take a mortgage for a future indebted- ness. Simons v. First Nat. Bank of Union Springs, 93 N. Y. 269. Usury does not prevent a national bank which is the innocent holder for value of a bond and mortgage, from recovering the principal. U. S. R. S., §§ 5197, 5198. Only the federal govern- ment can question a loan on bond and mortgage made by a national bank. Slade V. Squier, 133 App. Div. 666, 118 N. Y. Supp. 278. BANKRUPTCY. 117 *BANKRUPTCY. (See Assignment for Creditors.) 1. In general. 2. Actions by assignee. 3. After acquired property. 4. Application of the Act. 5. Effect on assignment for creditors. 6. Effect of composition. 7. Effect of discharge. 8. Cut off by foreclosure. 9. Limitation. 10. Its effect on money judgments. 11. Precedence of. 12. Recording orders. 13. Sale by assignee. 14. Statutes. 15. Vesting of title. 1. In general. Inchoate dower. — A sale by a trustee in bankruptcy does not bar the inchoate dower of the bankrupt's wife. In re Schaeffer, 5 Am. B, R. 248, 105 Fed. 352. Foreign laws. — The courts of this state will not recognize or enforce a right or title acquired under a foreign bankrupt law, or foreign bankrupt proceedings, so far as affecting property within the jurisdiction of the courts of this state, or demands against residents of this state. Mossebnan v. Caen, 1 Hun, 647, 4 T. & C. 171. A subpoena may be served on the bankrupt by leaving a copy at his dwelling house with an adult person. (Involuntary since amendment of § 18 in 1903.) In re Risteen, 10 Am. B. R. 494, 122 Fed. 732. * The leading works on Bankruptcy are Collier on Bankruptcy (11th ed.) ; Hagar & Alexander's Bankruptcy Forms (2d ed. ) ; Moore on Fraudulent Convey- ances; Wood on Limitations; Am. Bankruptcy Digest; Am. Bankruptcy Reports. See NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 1, p. 419. 118 PEACTICAL EEAL ESTATE LAW. Disclaimer by the trustee. — When the bankrupt schedules the property in question, and the trustee reports "no assets," this is equivalent to a disclaimer by the trustee; and where all the debts are paid, and both the bankrupt and the trustee are dis- charged, the title reverts by operation of law, to the bankrupt; and no conveyance by the trustee is necessary. Sessions v. Eomadka, 145 U. S. 29. The words notice, or actual knowledge, in § 17 of the act, mean personal notice; and not a mere casual conversation by a. disinterested person. Wheeler v. Newton, 168 App. Div. 782, 154 N. Y. Supp. 431, aff'd 220 N. Y. 607, 115 N. E. 1053. Notice of sale must he duly served hy mail on all creditors. The referee can appoint the trustee under § 38a (4) of the Bankruptcy Act. He also has general powers of the court. In re Overholzer, 23 Am. B. R. 10. In re KuflBer, 3 Am. B. R. 162, 97 Fed. 187. In re Brooke, 4 Am. B. R. 50, 100 Fed. 432. Possibility of reveetee is not such an estate of a bankrupt that it passes, to the trustee in bankruptcy. A trustee in bankruptcy is not a bona fide purchaser for value of real estate coming into his hands. Robertson v. Schlotzhauer, 40 Am. B. R. 237, 243 Fed. 324. N. Y L. J. (editorial), Oct. 11, 1917. 2. Actions by assignee. Foreclosure.-T-A bankruptcy assignee can bring a foreclosure action in a state court, since the United States Revised Statutes of 1874. Burlingame v. Parce, 12 Hun, 144. Wente v. Young, 12 Hun, 220. Partition. — The assignee can bring a partition action; and without obtaining leave of court. Rutlierford v. Hewey, 59 How. Pr. 231. Fraud of creditors.— The bankruptcy court has jurisdiction of suits to recover property transferred in fraud of creditors. In re Newberry, 3 Am. B. R. 158, 97 Fed. 24. BANKRUPTCY. 119 But a bankruptcy trustee has no standing to maintain an action to set aside a conveyance of property to a third person and paid for with the bankrupt's money. Real Property Law, I 94 (former Real Property Law, § 74), creates a resulting trust in favor of creditors only. London v. Epstein, 138 App. Div. 513, 123 N. Y. Supp. 399. The state courts have no power, in an action by an assignee in bankruptcy, to declare void a conveyance by the bankrupt, solely on the ground that it is in contravention of the Bankruptcy Act. The United States courts alone have that power. Gilbert v. Priest, 65 Barb. 444, 14 Abb. Pr. N. S. 165. Validity of liens and conveyances. — Bankruptcy courts have the same jurisdiction as the state courts to inquire into the validity of liens on, and conveyances of, real estate by the bankrupt. Carter v. Hobbs, 1 Am. B. R. 215, 92 Fed. 594. Suits by an assignee to set aside transfers alleged to be fraudulent, can only be brought in the state courts, except by the consent of the defendants. Act of 1898, § 23, subd. B. Bardes v. First Nat. Bank of Hawarden, 178 U. S. 524, 20 U. S. Sup. CI. 1000. Jones V. Schermerhorn, 53 App. Div. 494, 66 N. Y. Supp. 999. > The Uniteid States district court has jurisdiction to set aside a transfer made over four months prior to the bankruptcy, under Bankruptcy Act of 1898, § 70e. Winslow V. Staab, 36 Am. B. R. 626, 233 Fed. 305. Powers of judgment creditors. — Congress has vested a trustee in bankruptcy with the powers and rights of a judgment credi- tor, by the amendment of 1910 to § 47a (2) of the Bankruptcy Act of 1898. Jenks V. Title Guarantee & T. Co., 170 App. Div. 830, 156 N. Y. Supp. 478. 3. After acquired property. Belongs to bankrupt alone. — Under both the Bankruptcy Laws of 1867 and 1898, property acquired by the bankrupt after 120 PRACTICAL REAL ESTATE LAW. petition, belongs to the bankrupt alone. Under both acts, the only property which passes to the assignee, is that owned by the bankrupt at the date of the petition; and the only difference is, that under the 1898 Act, § 70, subd. 5, it does not actually vest in the assignee until the date of adjudication; but the 1867 Act provides that the adjudication shall relate back to the date of filing the petition. in re Harris, 2 Am. B. E. 359, 99 Fed. 71. 4. Application of the Act. Building and loan association. — The Bankruptcy Act does not apply to a building and loan association. Matter of New York Building-Loan Banking Co., 11 Am. B. R. 51, 127 Fed. 471. An insane person cannot commit an act of bankruptcy, and the court will not entertain a petition against him. In re Funk, 4 Am. B. R. 96, 101 Fed. 244. The court cannot adjudicate a ianhrupt and sequestrate his property, while he is incompetent, without a guardian or committee appointed in the proceeding, to protect his rights. Infants can be bankrupts as to debts enforceable against them. The bankruptcy acts nowhere except infants; and as to contract debts, they are exempt from the provisions of the acts, not because they are infants, but because they do not owe debts. In re Walrath, 24 Am. B. E. 541, 175 Fed. 243. And upon ratifying by testifying before the referee in bank- ruptcy after becoming of age, adjudication in bankruptcy may be made against him. In re Maudel, 33 Am. B. E. 42. 5. Effect on assignment for creditors. Assets in hands of assignee. — After a general assignment for the benefit of creditors, a bankruptcy proceeding cannot affect assets in the hands of the assignee. Smith T. Tighe, 46 Super. (14 J. & S.) 270. BANKRUPTCY. 121 But the Bankruptcy Act avoids a general assignment for the benefit of creditors made within four months of the filing of the petition. The petition suspends the assignment and the adjudi- cation supersedes it. Matter of Gray, 47 App. Div. 554, 62 N. Y. Supp. 618. If title is made through such a bankruptcy, no proceeding is neces- sary to dispose of the general assignment. When a general assignment is followed by a bankruptcy, on adjudication the assets vest in the trustee; and the assignee for creditors thereafter becomes merely a custodian without title, and the state court has no further jurisdiction. Matter of Louis Neuburger Inc., 37 Am. B. R. 248, 233 Fed. 701. A general assignment for creditors in New York (although not ' ' insolvent laws ' ' within the meaning of the last paragraph of the 1898 Act), if made within four months of adjudication, is voidable by the trustee in bankruptcy, because it is, in effect, a transfer in fraud of creditors under § 70 of the Act. In re Gutwillig, 1 Am. B. E. 78, 388, 90 Fed. 475, 92 Fed. 337. 6. Effect of composition. Bankruptcy proceedings superseded.^ — The effect of a com- position is to supersede the bankruptcy proceedings, and to reinvest the bankrupt with all his property, free from the claims of his creditors. A certified copy of the order, when recorded, acts as a deed. Collier on Bankruptcy (11th ed.), p. 336. McDonald v. Taylor & Co., 144 App. Div. 329, 128 N. Y. Supp. 1048. A composition does not discharge a creditor's mortgage. — The creditor may foreclose his mortgage, although he has received his pro rata share under the composition. Cohn V. Colby, 57 How. Pr. 168. 7. Effect of discharge. Immaterial to question of title to property. — ^A discharge is often granted before the estate is fully administered. Its only object is to enable the debtor to start anew in the business 122 PRACTICAL REAL ESTATE LAW. world without being embarrassed by his former obligations. The complete separation of the bankrupt from his former estate renders his discharge immaterial to the question of title to his property. Nevir York Institution lor Instruction of Deaf and Dumb v. Crockett, 117 App. Div. 269, 102 In. Y. Supp. 412. Not extinguishment of debt. — ^A discharge is not, per se, an extinguishment of the debt. Collins V. McWalters, 35 Misc. 648, 72 N. Y. Supp. 203. Bankruptcy discharges liability on the covenants in a deed. — Where the breach happens after the filing of the petition upon which the certificate is granted, a covenant of quiet enjoyment in a deed is discharged by a certificate in bankruptcy. Jemison v. Blowers, 5 Barb. 68-6. *8. Cut off by foreclosure. FOEECLOSUHE AFTEE PETITION_, BUT BEFOEE A TEUSTEB IS APPOINTED- — The holder of the mortgage is entitled to his remedy irrespective of the status of the bankruptcy proceedings. The creditors have had their day in court; they might have examined the bankrupt and discovered that he had an interest in the premises, and have had a trustee appointed to sell the same. In such a case, the bankrupt must be made a defend- ant; but no oive representing the creditors is necessary. If, however, a receiver or trustee is appointed before judgment of foreclosure and sale, he should be brought in. Receivee joined withoitt bankeupt. — If a receiver, who is a mere custodian, is appointed, but no trustee, and he is joined, without the bankrupt, the title is defective, and judgments against the bankrupt after the lis pendens is filed, are not cut off. Assignee joined without leave of court. — ^A foreclosure sale is not void because the title was in an assignee in bankruptcy who was joined as a defendant without obtaining leave of court to bring him in. Andrews v. Townshend, 56 Super, (24 J. & S.) 140, 1 N. Y. Supp. 421. Assignee made defendant individually. — In a foreclosure ' See also NOTE N. Y. Rpts., Bender Annotated Ed., Bk. 21, p. 784. BANKRUPTCY. 123 action it is not sufSficient that an assignee individually is made a defendant, in the absence of an averment in the complaint of his representative character, or an answer or appearance by him in that, character. Landon v. Townshend, 113 N. Y. 93, 19 N. E. 424. When a bankeuptct assignee is bead^ a plaintiff in foreclosure is not obliged to get a new assignee appointed ; but he can go ahead, dis- regading the bankruptcy. So if the trustee is discharged and no nx-.w one is appointed. A bankruptcy trustee, appointed after the mortgage was given, has no right to stay the foreclosure while he determines title with a subsequent grantee. Mutual Life Ins. Oo. v. Flelschman, 149 App. Dlv. S3, 133 N. Y. Supp. 512. If a petition in bankeuptct is filed aftek lis pendens in fore- closure, it is not necessaary to join the trustee. *9. Limitation. It is dangeeofs to diseegaed old bankruptcies.' — An assignee ap- pointed under the Bankruptcy Law of ISGT, brought ejectment in the United States court in New York City in. 1911, and succeeded. Hutchinson v. New York Central (unreported). The New Yoek statute (L. 1875, ch. 545, later Real Property Law, § 110, former Real Property Law, § 90), limiting trusts for the benefit of creditors to twenty-five years, cannot apply to proceedings in the United States bankruptcy courts. The decision of Blanchard, J., in Pooler v. Sammet, 58 Misc. 459, 111 N. Y. Supp. 638, rev'd on another ground, 130 App. Div. 650, that a trust in an assignee in bankruptcy, ceases from lapse of time, is erroneous. Action for disseizin of lands vested in assignee. — The limita- tion of two years within which the assignee must bring actions, does not apply to a cause of action for a disseizin of lands vested in him by the proceedings. In such a case the cause of action never vested in the bankrupt, but arose out of a wrong done to the assignee himself, or to' the property vested in him. Stevens v. Hauser, 39 N. Y. 302. • See also NOTE, N. Y. Rpts, Bender Annotated Ed., Bk. 35, p. 819. 124 PEACTICAL EEAL ESTATE LAW. 10. Its effect on money judgments. A bankrupt can have a judgment against him discharged under Code of Civil Procedure, § 1268, even though it was a lien upon property conveyed by the bankrupt before the adjudi- cation in bankruptcy. Fellows V. Kittredge, 56 How. Pr. 498. And a judgment recovered after bankruptcy can be canceled the same as one recovered before, if the debt on which it was based, was provable in bankruptcy, and was actually contained in the schedules. Walker v. Muir, 194 N. T. 420, 87 N. E. 680. Debtor and Creditor Law (L. 1909, ch. 17), § 150, formerly Code of Civil Procedure, § 1268. — To discharge a judgment under this section, proof must be made that the debt has been scheduled, or that the creditor has had notice or actual knowl- edge of the proceedings. While the provisions of this section make a judgment against an adjudicated bankrupt invalid as a lien, yet it is not made to so appear until the essential facts are shown to exist. As extrinsic facts are required to be estab- lished, the judgment, though invalid, appears, presumptively, to be capable of enforcement. The existence of such a condition creates a cloud upon the title which would authorize the main- tenance of an action in equity for its removal, upon an averment of the facts showing that it was invalid. The provisions of this section are not self -enacting; and before they can be given operative effect the extrinsic facts must be established. Until this condition is made to appear, the invalidity of the judgment is not apparent; and nothing would stand in the way of its presumptive existence as a valid lien. Graber v. Gault, 103 App. Div. 511, 514, 93 N. Y. Supp. 76. The provisions of Code of Civil Procedure, § 1268, are intended to make a public record of the fact that the judgments are dis- charged, not to discharge them. That is 9one by the decree of the United States court discharging the debtor from all claims, demands, etc. Matter of Peterson, 64 Misc. 217, 118 N. Y. Supp. 1077, aff'd 137 App. Div. 435, 1Z4 N. Y. Supp. T38. BANKRUPTCY. 125 Judgments axe not liens after the discharge of the judgment debtor in bankruptcy. The fact that such judgments are not canceled under Code of Civil Procedure, § 1268, does not make the title unmarketable. Grosso V. Marx, 45 Misc. 500, 92 N. Y. Supp. 773. The cancelation of a judgment under Code of Civil Procedure, § 1268, may be set aside where the business address only of the creditor is scheduled, instead of his residence. McKee v. Preble, 154 App. Div. 156, 138 N. Y. .Supp. 915. The object of Code of Civil Procedure, § 1268, is to remove a cloud from the record by procuring a cancelation of the judg- ment on the record. Matter of Peterson, 137 App. Div. 435, 131 N. Y. Supp. 738. Pickert v. Eaton, 81 App. Div. 433, 81 N. Y. Supp. 50. Insufficient address in schedule. — A motion to discharge a judgment was denied, where the address of the judgment credi- tor was given in the schedules as "Mulberry Street, New York," without giving the street number, and said creditor did not receive the notice. Oagliostro v. Indelli, 53 Misc. 44, 102 N. Y. Supp. 918. Judgments and other liens. — If a judgment creditor proves his debt in bankruptcy, he loses his lien against the estate of the bankrupt debtor. ^9 V. Stephens, 7 Law. R. 281, Fed. Oases No. 1873. Upon taking title from a trustee in bankruptcy, judgments against the bankrupt owner, recovered within the four months period immediately preceding the bankruptcy, are not grounds for rejection of the title. Kennedy v. Holl, 52 Misc. 379, 103 N. Y. Supp. 231. Judgments, attachments or other liens, recovered against a person who is insolvent, within four months prior to the filing of a petition in bankruptcy against him, are void under the National Act. National Bank & Loan Co. v. Spencer, 53 App. Div. 547, 65 N. Y. Supp. 1001. 126 PEACTICAL REAL ESTATE LAW. A judgment docketed within four months of the petition, is super- seded by the adjudication, under § 67/ of the Act of 1898. The in- solvency of the judgment debtor at the time of docketing, may fairly he assumed. The lien of a judgment within four months, survives the bank- ruptcy as to property not taken by the trustee. McCarty v. Light, 155 App. Div. 36, 139 N. Y. Supp. 853. A bankruptcy discharge does not release a judgment for alimony, although scheduled; and a motion to cancel such a judgment was denied. Maier v. Maier, 77 Misc. 145, 135 N. Y. Supp. 1038. Matter of Williams, 208 N. Y. 32, 101 N. E. 853. A judgment in an action for conversion is discharged by an adjudication in bankruptcy against the defendant, upon a proper order to that effect being granted. Fecliter r. Postel, 114 App. Div. 776, 100 K. Y. Supp. 207. A judgment may be canceled under § 150, Debtor and Creditor Law, although the action was not begun until after the discharge of the bankrupt, if the debt was scheduled. Rukeyser v. Tostcvin, 188 App. Div. '629. 11. Precedence of. Proceedings of state court. — A bankruptcy supersedes an attachment levied or a receivership created in the state court within the four months preceding the bankruptcy proceedings. Miller v. Bowles, 58 N. Y. 253. There are many grave and unsettled questions involved in the deter- mination of the effect of an adjudication of bankruptcy, upon a deed made by the receiver of a state court in the interval between the filing of the petition in bankruptcy and the adjudication; and there is very good ground to believe that such conveyances could probably be ren- dered void by such an adjudication. The appointment by the state court of a receiver of a corporation in insolvency proceedings, is not a:" lien," which, by § 67 of the Bank- ruptcy Act, may be dissolved by an adjudication in bankruptcy within four months; and such adjudication cannot overreach and annul the appointment of a receiver previously duly made. \ BANKRUPTCY. 127 "Whenever, in a suit in a state court, the property of a debtor has come into the custody of that court, its right to control and administer it for the purposes of that suit is superior to that of the bankruptcy court, provided such suit was commenced and the seizure made before the beginning of the four months period referred to; but, if the suit was begun and the seizure made within that period, the right of the bankruptcy court over the property is not only superior, but after the adjudication is exclusive, regardless of what has been done in the state court, whose jurisdiction in such cases is divested by the bankruptcy proceedings. ' ' In re Knight, 12J Fed. 35. See Bloch v. Blocli, 42 Misc. 278, 86 N. Y. Supp. 1047. A transfer in fraud of the act, is not void, but simply voidable at the election of the trustee; and the proceeds of the property transferred cannot be reached until the transfer has been set aside. Dyer v. Kratzenstein, 103 App. Div. 404, 92 N. Y. Supp. 1012. Under the Act of 1867, § 10, as amended % L. 1874, ch. 390, the jour months' period in involuntary -proceedings was changed to two months; and in voluntary petitions, from six to three months. A mortgage to a trustee to secure bonds made within the four months prior to the bankruptcy, cannot be questioned by credi- tors, unless they can prove "that the act was done in view, or forecast of, insolvency." It is not enough that the act com- plained of and the insolvency, co-existed. Wills V. Venus Silk Glove Mfg. Co., 170 App. Div. 353, 156 N. Y. Supp. 115. Recording. — § 60, subds. a, b, of the Act, that a transfer recorded within four months of filing the petition, shall be deemed a preference, "if by law such recording or registratioii is required," does not apply to New York state, where record- ing is permissive only. Getman v. Lippert, 171 App. Div. 536, 157 N. Y. Supp. 867. Uarey v. Donohue, 240 U. S. 430. 12. Recording orders. A CERTIFIED COPY OF THE ADJUDICATION AND A CEKTIFIED COPY OP THE oEDEE APPEOViNG THE texjstee's BOND, should be recorded in 128 PRACTICAL REAL ESTATE LAW. every county where there is property of the hanhrupt estate. §§ 21e, 47c of the Act of 1898. The order approving the trustee's bond is equivalent to a deed from the bankrupt to the trustee. Certified copy of decree not filed. — The fact that no certified copy of the decree adjudicating the bankrupt is on file in the register's ofiice of the county, as provided by the Bankruptcy Act, does not affect the validity of the title. Kennedy v. Holl, 52 Misc. 379, 103 N. Y. Supp. 231, 13. Sale by assignee. Power to sell only by order of court. — Under the Bankruptcy Law of 1841 the assignee took a statutory title to real estate, but he had no power to sell it without an order of the court; and any sale made without such order, was void. The question of want of power in the assignee may be raised whenever and wherever the title claimed under such a sale is brought into question. And the order of court under the 1841 Act must fix the time and manner of sale; and if it did not fix such time, the sale thereunder was void. Smith V. Long, 12 Abb. N. C. 113, 3 Civ. Proc. E. 396. A bankruptcy sale without an order of court, is invalid. Palmer v. Morrison, 104 N. Y. 132, 10 N. E. 144. An assignee in bankruptcy has no power to sell and convey the property without an order of court. The obtaining of such an order is a substantial requirement of the statute and must be complied with. A purchaser claiming under a deed by such assignee, must aver and prove an order of sale. It cannot be proved by recitals in the deed. Such recitals are only evidence of the bankruptcy, Jthe appointment of the assignee, and the consequent conveyance to him. Cleveland v. Boerum, 27 Barb. 252, aff'd 24 N. Y. 613. Form of order; advertisement.— But an ordered sale, if the court had jurisdiction, was held valid without regard to the form of the order or the advertisement required. Kmith V. Long, 9 Daly, 429, rev'd, liowever, 12 Abb. ^'. C. 113. BANKRUPTCY. 129 Implied contract of validity of title. — In a sale by the assignee there is an implied contract that the title is good. Clark V. Post, 113 N. Y. 17, 20 N. E. 573. Undee the court rules foe the southern district of New York, the referee in bankruptcy can order the sale of real estate. Lien of mortgage. — A bankruptcy court can order the real estate of a bankrupt sold free from the lien of a mortgage, which is thereby relegated to the proceeds of sale. Collier on Bankruptcy- (11th ed.), p. 1171-1174. A sale of mortgaged lands can be made by order of the bank- ruptcy court, free from the mortgages. Equitable Trust Co. v. Vanderbilt Realty Imp Co., 155 A. D. 723, 140 N. Y. Supp. 1008. The court can order land sold clear of a prior mortgage, relegating the lien of same to the proceeds of sale. Matter of Tube Co., 25 Am. B. R. 651, 184 Fed. 6(14. In re Vulcan Foundry and Machine Co., 24 Am. B. R. 825, 180 Fed. 671. Matter of V. S. Ohrysotile Asbestos Co., 41 Am. B. R. 294, 774, 253 Fed. 294. Vacation or confirmation of sale. — There are no terms of court in bankruptcy, and an order of sale may be vacated at any time before the deed is given. Before confirmation of a sale the purchaser is merely a preferred proposer. But con- firmation has the effect of completing the sale and vesting the- full equitable title in the purchaser. Confirmation cures all defects and irregularities except jurisdictional ones. After that a sale will not be set aside except for the same reasons for which equity would set aside a sale between individuals, such as fraud or mutual mistake. A sale will not be set aside for the mere inadequacy of the price bid. Mortgagees ifeed not be notified of the sale. Matter of Burr Mfg. & Supply Co., 32 Am. B. E. 708, 217 Fed. 16. A BANKEUPTCT TEUSTEE CAN EXCHANGE EEAL ESTATE if the exchange he approved iy the creditors, the referee in bankruptcy and the court. The trustee can exchange real estate upon receipt of a balance in cashj and after obtaining an order of court. 130 PRACTICAL REAL ESTATE LAW. Oedee of couet necessaey. — § 70b of the Act of 1898 does not mean that real estate can be sold without an order of court where the selling price is seventy-five per cent or more of the appraised value; but the trustee must obtain ark order approving or ordering the sale in every case. The trustee should not sell real estate without an order of court § 70b, Act of 1898. Mechanics' liens. — The bankruptcy trustee takes his title sub- ject to liens filed by laborers, mechanics, materialmen or subcon- tractors, — subsequent to the assignment, but within the time prescribed by statute. Gates and Co. v. Stevens Const. Co., 220 N. Y. 3S, 115 N. E. 22. Ergo: Look out for building operations or improvements, on taking title from a trustee in bankruptcy. The trustee cannot eelease lanb feom an oveedtje mortgage without authority of court, even though the mortgage contains a release clause, because such a clause becomes unenforcible after default. 14. Statutes. Act of 1800.— April 4, 1800, to Dec. 19, 1803. § 2. United States district court, to appoint three commis- sioners. § 5. Such commissioners have power, after having declared the person to be a bankrupt, to take into possession all of his estate. § 6. Creditors to choose an assignee. § 11. Commissioners have power to convey the bankrupt's lands to the assignee. § 50. Any real estate vested in the bankrupt before discharge, to be conveyed in th£ same way. § 59. Lands of the bankrupt may be sold as a majority of the creditors may direct. Act of 1841.— Feb. 1, 1842, to March 3, 1843. § 3. Real estate vested in the assignee by adjudication of bankruptcy. § 4. Bankrupt entitled to discharge, on surrendering all of his property. BANKRUPTCY. 131 § 6. District court to have jurisdiction,. § 9. All sales of bankrupt's property shall be made as ordered and appointed by the court in bankruptcy. § 15. Copy of bankruptcy decree and appointment of assignee, shall be recited in every deed of property by the assignee. Act of 1867.— June 1, 1867, to July 1, 1878. § 1. District courts constituted courts of bankruptcy. § 2. Must appoint in each congressional district, one or more registers in bankruptcy. § 4. Registers shall have power, to make adjudication of bankruptcy, and to dispatch such uncontested matters as shall be defined in the general orders, or as directed by the judge. § 11. Voluntary petition to district court. The filing of such a petition shall be an act of bankruptcy; and such petitioner shall be adjudged a bankrupt. § 13. Creditors shall at first meeting, choose one or more assignees; if not, the judge or register must appoint them. § 14. As soon as assignee is appointed, the judge or register shall assign and convey to him all the real and personal estate ; and such assignment shall relate back to the commencement of the proceedings; and thereupon, by operation of law, the title to all such property shall vest in him. The assignee shall, within six months, cause the assignment to him to be recorded in every registry of deeds, or other office in United States, where any conveyance of lands owned by the bankrupt ought to be recorded by law. And the record of such assignment, or a duly certified copy thereof, shall be evidence in all courts. § 15. The assignee shall sell all such unincumbered estate, real and personal, which comes to his hands. Amended June 22, 1874: unless otherwise ordered by the court the assignee shall sell the real and personal property of the bankrupt at public auction, after publication once a week for three consecutive weeks in a paper designated by the judge. The court may order sale for one-fourth cash and three-fourths mortgage. § 18. No title to property, real or personal, sold or conveyed by an assignee, shall be impaired or affected by his ineligi- bility. § 32. Form of discharge. 132 PEACTICAL EEAL ESTATE LAW. § 35. Fraudulent conveyances bj- the bankrupt within four months before filing petition, declared void. By amendment in effect June 22, 18li, this period was reduced to two months. § 37. Provisions of act apply to all moneyed, business or com-' mercial corporations, and joint stock associations. § 38. The filing of a petition, voluntary or involuntary, shall be deemed the commencement of proceedings in bankruptcy. § 39. Involuntary bankruptcy. § 42. Adjudication and warrant to take possession of estate, in involuntary bankruptcy. Act of 1898.— July 1, 1898. § 1. Meaning of words and phrases. § 2. District courts made courts of bankruptcy. § 3. Acts of banliruptcy: (1) transferring or concealing prop- erty with intent to defraud creditors; (2) transferring property while insolvent, to a creditor with inteiit to prefer him; (3) suffering a creditor to obtain preference through legal proceed- ings; (4) making a general assignment for the benefit of credi- tors; (5) admitting, in writing, inability to pay debts, and willingness to be adjudged a bankrupt on that ground. A peti- tion may be filed against a person who is insolvent and has committed an act of bankruptcy within four months thereafter. § 4. Any person, except a corporation, who owes debts, may become a bankrupt. Any corporation engaged principally in manufacturing, trading, printing, publishing or mercantile pur- suits, owing debts amounting to $1,000 or more, may be adjudged an involuntary bankrupt. Also private bankers; but not national or state banks. § 5. Partners may be adjudged bankrupts. § 8. Death or insanity of bankrupt shall not abate the pro- ceedings; but his widow shall have dower as provided by the law of the state. § 11. A suit pending at the time of the petition, on a claim from which a discharge would be a release, is stayed until after an adjudication or dismissal of petition; and may be stayed for twelve months after adjudication. Suit shall not be brought by or against a trustee subsequent to two years after the estate is closed. BANKEUtTCY. 133 § 12e. Upon confirmation of a composition the consideration shall be distributed as the judge shall direct, and the case dis- missed. § 14. Discharge. § 18. A petition in involuntary bankruptcy, with a subpoena, must be served on the defendant, the same as in any equity suit. § 21e. A certified copy of an order appi'oving the bond of a trustee, shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt ; and, if recorded, shall impart the same notice that a deed from the bankrupt to the trustee, if recorded, would have imparted, had the bank- ruptcy proceedings not intervened. § 21g. A certified copy of an order confirming a composition, shall constitute evidence of the revesting of the title to his prop- erty in the bankrupt; and if recorded, shall impart the same notice that a deed from the trustee to the bankrupt, if recorded, would impart. § 28. Designation by the court of newspapers for publication. § 31. Computation of time excludes the first day and includes the last. § 33. Creating the offices of referee and trustee. § 38. Referees have jurisdiction . . . (4) to do such acts as shall be prescribed by the rules or orders of the courts of bankruptcy in their respective districts. § 39a. The referee shall . . . (7) safely keep and perfect the records, and transmit them to the clerks. § 39b. The referee shall not . . . (3) purchase, directly or indirectly, any property of an estate in bankruptcy. § 42. A record of the proceedings in each case shall be kept in a separate book by the "referee ; and when the case is concluded shall be certified and transmitted with the papers on file to the court, to remain as a part of the court records. § 44. The creditors shall, at the first meeting after adjudica- tion, appoint a trustee. If not, the court shall do so. § 47c. Added by amendment of 1903. The trustee shall, within thirty days after adjudication, file a certified copy of adjudication in the office where conveyances of real estate are 134 PRACTICAL REAL ESTATE LAW. recorded, in every county where the bankrupt owns real estate not exempt from execution. § 50. Bonds of referees and trustees. § 67e. All conveyances, transfers, assignments and incum- brances, made or given within four months prior to the filing of the petition, with intent to defraud creditors, are void, except as to purchasers in good faith and for a present consideration. § 67f. Same with judgments and other liens by legal pro- ceedings. § 70a. The trustee, upon his appointment and qualification, shall be vested by operation of law with the title of the bank- rupt to all . . . (5) property which, prior to the filing of the petition, he could by any means have transferred. § 70b. All real and personal property shall be appraised by three appraisers appointed by the court. Real and personal property shall, when practicable, be sold subject to the approval of the court; it shall not be sold otherwise than subject to the approval of the court, for less than seventy-five per cent of its appraised value. § 70c. Title to property to be conveyed by the trustee. § 70e. The trustee ihay avoid any fraudulent transfer by the bankrupt, except from a bona fide holder thereof. § 70f. Upon confirmation of a composition offered by a bank- rupt, the title to his property shall thereupon revest in him. *15. Vesting of title. By the adjudication and appointment of a trustee, the bank- rupt is divested of all title to his property; and the trustee's discharge does not restore the title to the bankrupt or his heirs. Kempner v. Bauer, 53 Misc. 109, 104 N. Y. Supp. 76. Under Bankruptcy Act of 1898, § 70, the appointment of a trustee is essential to divest the bankrupt of title to his property. Rand v. Iowa Central Ry. Co., 186 N. Y. 58, 60, 78 N. E. 574. "No change of title was effected until the appointment and qualification of the trustee. ' ' Fuller V. N. Y. Fire Ins. Co., 184 Mass. 12, 67 N. E. 879. * See also NOTE N. Y. Rpts., Bender Annotated Ed., Bk. 38, p. 27. BANKRUPTCY. 135 Election by trustee. — But the title to a lease passes to the trustee only in case he elects to accept it; otherwise it remains in the bankrupt. Matter of Frazin & Oppenheim, 24 Am. B. R. 903, 183 Fed. 28. Adverse possession against assignee. — Property not scheduled vests in the assignee, and remains there until divested. Adverse possession against the assignee for twenty years, under color of title, even by the bankrupt himself, makes a marketable title. Ledoux V. Samuels, 116 App. Div. 726, 102 N. Y. Supp. 43. Time of vesting in assignee or trustee. — The Act of 1867 vested title in the assignee as of the date of the petition; but by the Act of 1898 the trustee is vested with the title as of the date the bankrupt was adjudged such. And the judiciary committee, in reporting the 1898 Act to Congress for passage, stated in their report, that under the act as drawn, the alleged bankrupt could sell and convey a perfect title up to the date of adjudication; because it did not follow, because there was a petition, that there would be an adjudication of bankruptcy, and it seemed but proper that the public, in dealing with him, should be protected until he was actually adjudged a bankrupt. In re Rennie, 2 Am. B. R. 182. An equitable title remains in the bankrupt, even after a con- veyance to .his assignee, as the assignee simply holds it in trust. Colie V. Jamison, 4 Hun, 284. A contingent interest in real estate passes to the assignee in bankruptcy. Clark V. Grosh, 81 Misc. 407, 142 N. Y. Supp. 966. The assignee does not take a contingent remainder of the bankrupt. In re Hoadley & Monroe, 3 Am. B. R. 780, 101 Fed. 233. The Act of 1867, § 14, provides for a conveyance by the register to the assignee; and until that is done, the title does not vest (although the equitable title may). Rand v. Iowa Central Ry. Co., 96 App. Div. 413, 89 N. Y. Supp. 212, rev'd an another ground 186 N. Y. 58, 78 N. E. 574. 136 PKACTICAL EEAL ESTATE LAAV. A trustee in bankruptcy is not a bona fide purchaser; but occupies tlie position of a creditor with an execution issued and levied upon the date of the filing of the petition in bankruptcy, and not earlier. Matter of Zeis, 39 Am. B. E. 3S0, 245 Fed. 737. BAR. (See Judgment.) BEACH. (See Water.) BEAM RIGHT. (See Easement.) BETWEEN. (See Construction.) BOARD. (See Lease.) *BOARD OF HEALTH. Records of death as evidence. — Board of health records of death and its causes are not admissible in evidence, between private parties, of the facts recorded. The statute and city ordinances requiring the keeping of such records, are police regulations; and such records are for local and specific pur- * See also Joyce on Nuisance, Fiero on Special Actions {3d ed. ), and Supplement, 1919, under Nuisances; NOTE N. Y. Rpts., Bender Annotated Ed., Bk. 30, p. 886. BOARD OF HEALTH. 137 poses, and are not public records in the sense that they are admissible as above. Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & M. Mut. Aid Asso., 126 N. Y. 450, 37 N. E. 943. Boards of health cannot purchase and permanently hold and own real estate. — Their authority to procure suitable places for the care of contagious diseases, is satisfied by leasing places temporarily. They have no capacity to sue or be sued. People V. Supervisors of Monroe, 18 Barb. 567. A board of health contract with the owner of land, not to build on a strip of land, does not and cannot be made to run with the land, because the board has no title to or interest in the premises, which interest is essential to make it run with the land. Wilmurt v. McGrane, 16 App. Div. 412, 45 N. Y. Supp. 32. Construction of drain. — In People ex rel. Spencer v. Village of New Rochelle, 83 Hun 185, 31 N. Y. Supp. 592, the court seems to doubt whether the construction of a drain which is a part of the public sewerage system of a village,, can be undertaken by the board of health, instead of by the village trustees; but Haag V. City of Mount Vernon, 41 App. Div. 366, 58 N. Y. Supp. 581, holds that this can be done by a health board. Its power to abate nuisances and to direct improvements which will prevent a recurrence of the trouble, is fully sus- tained. Haag V. City of Mount Vernon, 41 App. Div. 366, 58 N. Y. Supp. 581. Cartwright v. City of Cohoes, 39 App. Div. 69, 56 N. Y. Supp. 731, aff'd 165 N. Y. 631. Health Dept. v. Trinity Clmrch, 145 N. Y. 32, 39 N. E. 833. Its resolution and order are in no sense an adjudication as to what constitutes a nuisance. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1, 35 N. E. 320. An action to enforce its order is properly brought in the name of the village, instead of that of the board. Board of Health v. Magill, 17 App. Div. 249, 45 N. Y. Supp. 710. 138 PRACTICAL REAL ESTATE LAW. But the complaint must state facts to show the nuisance. It is not enough to allege and prove that the board has declared a nuisance and ordered it abated. Village of White Plains v. Tarrytown, W. P. & M. R. Co., 117 App. Div. 841, 102 N. Y. Supp. 1046. Decision depriving person of property. — The decision of the board of health as to a matter, the result of which would deprive a person of his property, when such decision is made without notice to the person injured, is not final, and may be reviewed by the courts. The remedy is by injunction and for damages, and the presumption is that the board, acting in a quasi-judicial capacity, acted properly. I'eople ex rel. Copcutt v. Board of Health, 14 N. Y. 1, 35 N. E. 320. Golden v. Health Department, 21 App. Div. 420, 47 N. Y. Supp. 623. •^BONA FIDES. Protected against defects. — Bona fide purchasers for value without notice of a defect, are protected against such defect. Harrington v. Erie County Sav. Bank, 101 N. Y. 257, 262.. 4 N. E. 346. A vendee in possession, who is paying by instalments, is not a bona fide purchaser until he has completed his payments. Bowen v. Dawley, 116 App. Div. 568, 101 N. Y. Supp. 878. A bona fide purchaser for value without notice, must have paid all the purchase money. If he has paid only a portion of it, he will be entitled, in equity, to protection only to the extent of his payments innocently made before notice of plaintiff's claim. The giving of a purchase money mortgage is not payment in this sense. Macauley v. Smith, 132 N. Y. 524, 532, 30 N. E. 997. One is not a bona fide purchaser unless he has his money before notice, — to have given his obligation is not sufficient. Genet v. Davenport, 66 Barb. 412, aff'd 56 N. Y. 676. * See also NOTE N. Y. Rpts., Bender Annotated Ed., Bk. 10, p. 121, Bk. 13, p. 617, Bk. 29, p. 610. BONA FIDES. 139 A receiving of the property as a security, or a payment of an antecedent debt, when no security is surrendered, or anything of value is parted with, is not a purchase for a valuable con- sideration, and does not make a bona fide purchaser. Wood V. Robinson, 22 N. Y. 564. Weaver v. Barden, 49 N. Y. 286. Cary v. White, 52 N. Y. 138, 141. To entitle a person to claim in the character of a purchaser in good faith, he must not only have paid value, but he must have dealt in ignorance of the facts and circumstances upon which the title of his grantor is assailed. Hoyt V. Thompson's Executor, 19 N. Y. 207. Bona fides in a conveyance, is not ground for relief, though it is a good defense. The fact of a bona fide purchase cannot be made use of as a substantive ground of equity for offensive operation. Beekman v. Frost, 18 Johns. 544. Knowledge by purchaser. — A purchaser "has no right to shut his eyes or his ears to the inlet of information, and then say he is a bona fide purchaser without notice." Wheeler v. Sigourney, 98 Misc. 150, 164 N. Y. Supp. 62. Knowledge by vendor. — A vendee refusing to take title on the ground that the vendor had knowledge of a prior unrecorded conveyance by his grantor, to another grantee, and thus was not a purchaser in good faith, is under burden to show that knowl- edge. Baecht v. Hevesy, 115 App. Div. 509, 101 N. Y. Supp. 413. 140 PRACTICAL REAL ESTATE LAW. *BOND. 1. In general. 2. Recognizance. 3. In action or proceeding. 4. Of collector. 5. With mortgage. 6. Statutes. 7. Surety, 1. In general. The omission of the penalty in a bond in an infancy proceed- ing, does not affect its validity. The only effect is to make the liability commensurate with the condition. Dodge V. St. John, 96 N. Y. 260. Bonds of surety companies, to take the place of individual bonds, were provided for by L. 1881, ch. 486, in effect June 13, 1881. Matter of Filer, 11 Abb. N. C. 107. It is no defense to an action on a bond for the purchase price, that the grantor had no title, if the grantee is in possession of the premises under his deed. Lamerson v. Marvin, 8 Barb. 9. Attorney sueett. — Although supreme court rule 5 provides that in no case shall an attorney he surety on any undertaking or bond, yet if an attorney does go on a bond in an action or proceeding, and such bond is approved by the court or judge, the title to real estate coming through such action or proceeding, -i^ not ajfected thereby. 2. Recognizance. Defined. — ^A recognizance is an "obligation of record, which *See also Fiero on Special Actions (3d ed.), and Supplement, 1919;.Fiero on Special Proceedings (3d ed.), and Supplement, 1919; Heaton's Surrogates' Courts (3d ed.); Thomson Mortgages (3d ed.) ; Bliss' Code of Civil Procedure (6th ed.), and Supplement, 1919; Parsons' Code of Civil Procedure; NOTE N. Y. Kpti., Bender Annotated Ed., Bk. 29, p. 921. BOND. 141 a man enters into before some court of record or magistrate duly authorized, with condition to do some particular act; as to appear at tlie assizes, to keep the peace, pay a debt, or the like. It does not, like a bond, create a new debt, but is the acknowledg- ment of a precedent one, which, being carried into record, becomes binding and conclusive on the party." The history, nature and effect of a recognizance, explained. People V. Kane, 4 Denio 530. 3. In action or proceeding'. The bond of a guardian ad litem in a partition action, can be filed nunc pro tunc after judgment. Croglian v. Livingston, 17 X. Y. 218. The bond of a guardian ad litem in partition running to the infant instead of to the people, is irregular. An application to open a judgment on this account, must be made within one year after the infant's majority. Byrnes r. Byrnes, 109 App. Div. 535, 96 N. Y. Supp. 3(?6. There is no provision in the Code of Civil Procedure requiring a bond of a guardian ad litem of an incompetent. A bond of a special guardian in an infancy proceeding, running to the county clerk and his successors in office, is sufficient, in the absence of any express provision in the Code of Civil Procedure or court rules requiring it to run to any one else, if it has been approved by a justice. A BONry IX A EEAL ESTATE PEOCEEDi:S'G- MUST BE ACIv:S"OWLEr)GED. Code of Civil Procedure, § 810. ^1 failure to so acknowledge is a fatal defect, even though the bond is regular in every other respect and is approved by a justice. Lack of seals on receiver's bond. — In an action by a receiver in supplementary proceedings to set aside a deed for fraud, the lack of seals on the receiver's bond was thus characterized in Hyatt V. Dusenberry, 12 Civ. Proc. R. 152, 161: "The omission of the seals in our opinion Avas an irregularity and not jurisdic- tional. The sureties were liable on the instrument, and the rights of no party were prejudiced by such omission (§ 729, Code). If the judgment debtor objected to the paper it was his right to apply to -the city court of New York and have it cor- rected. ' ' 142 PEACTICAL EEAL ESTATE LAW. 4. Of collector. The lien of town collectors' bonds can be enforced by fore- closure in equity, as the remedy at law is inadequate. Chatfield v. Campbell, 35 Misc. 355, 35 N. Y. Supp. 355, aflf'd 75 App. Div. 631, 78 N. Y. Supp. 1113. A statutory bond is a lien on real estate if the statute so pro- vides, but a common-law bond is not ; and unless the bond com- plies with all the statutory requirements, it is not a statutory bond. City of Mount Vernon v. Brett, 193 N. Y. 2T6, 86 N. E. 6, rev'g 115 App. Div. 882. Therefore in passing a title made through the foreclosure of such a hondj its regularity mv^t he minutely examined; for if all the statutory requirements are not complied u'ith, the hand is void as a lien and its foreclosure can give no title. Under the provisions of 1 E. S., 346, providing for the filing of collectors bonds, and the entry thereof by the county clerk "in the same manner in which judgments are entered of record;" and declaring that every such bond ' ' shall be a lien upon all the real estate held jointly or severally by the collector or his sure- ties," until its condition is fully satisfied, the lien so created is a general one, having no greater force than the lien of a judg- ment; and a prior unrecorded mortgage has priority over the bond. Until the passage of L. 1887, ch. 372, requiring such bonds to be recorded, it was not intended that they should be within the protection of the Eecording Act. There is no right to redeem from the sale under the foreclosure of such bonds. Crisfid* V. Murdoek, 127 N. Y. 315, 27 X. E. 1046. The above provisions were repealed by the former town law (L. 1890, ch. 569), § 244; but were substantially re-enacted by § 53 of that law, which also provides for the satisfaction of record of such bonds. This section was amended by L. 1897, ch. 323. It is now town law (L. 1909, ch. 63) , § 115. Such a bond is only a lien on real estate held by the bondsmen at the time of filing the bond. Town Law (L. 1909, eh. 63), § 115. BOND. 143 5. With mortgage. Place of payment. — Where no place of payment is specified in a bond and mortgage, the debt is payable at the residence of the mortgagee; or, to the mortgagee personally, wherever he may be found. Williams v. Hance, 7 Paige, 581. A bond and mortgage may be transferred by mere delivery, provided there is an intention to so transfer, accompanying the delivery. Strause v. Josephthal, 77 N. Y. 622, 624. Mahnken Co. v. Pelletreau, 93 App. Div. 4ag, 87 N. Y. Supp. 737. Production of bond and mortgage on satisfaction. — By L. 1903, ch. 490, amending former Real Property Law, § 270, the bond and mortgage must be produced with the satisfaction piece, before the register can satisfy the mortgage of record. But this affects only counties wholly embraced in cities of the first class. Now Real Property Law, § 322. Before accepting a satisfaction piece the closer should insist upon the production of the original bond and mortgage; or a satisfactory ex- planation of their nonprodnction should he given. The production of a bond and mortgage on satisfaction by the holder of record, is not necessary, where a purchaser is taking title or a new mortgage is being placed. One who takes a con- veyance of, or a mortgage' on, real estate, relying upon the satis- faction of a prior mortgage made by a third party, has no occa- sion to call for the production of the satisfied mortgage or the bond. He has no right to the possession of the canceled instru- ment. Bacon v. Van Sohoonhoven, 87 N. Y. 446, 451. 6. Statutes. By surety companies may be taken. L. 1881, ch. 486, as amended by L. 1885, ch. 401. Act for acceptance of surety company bonds. L. 1893, ch. 720, as amended by L. 1895, ch. 178. Official bonds by surety companies. Public Officers Law (L. 144 PRACTICAL REAL ESTATE LAW. 1909, eh. 51), § 11, as amended by L. 1911, cli. 424, and L. 1912, ch. 481. Code of Civil Procedure, § 810.— A bond must be acknowl- edged or proved and certified in like manner as a deed to be recorded before it becomes effectual. This was amended by L. 1877, ch. 416, by striking out the words "before it becomes effectual." Code of Civil Procedure, § 811. — A person need not join with his sureties in the execution of a bond, unless the provision requires him to execute the same; and the execution thereof by one surety is sufficient, although the word "sureties" is used, unless the provision expressly requires two or more sureties. Amended by L. 1886, ch. 416, by adding provision that the execution of a bond by a fidelity or surety company is equiva- lent to its execution by two sureties. Amended by L. 1895, ch. 510, by adding provision about justi- fication by a surety company through its officers. Code of Civil Procedure, § 812. — A bond must be joint and several in form, and accompanied by an affidavit of each surety to the effect that he is a resident of, and a householder or free- holder within the state, and is worth the penalty of the bond or twice the sum specified in the undertaking, over all debts, and exclusive of property exempt from execution. The bond, except as otherwise specially prescribed by law, must be approved by the court or a judge, which approval must be endorsed upon it. Amended by L. 1895, ch. 511, by adding provisions as to dis- charge of sureties; and dispensing with affidavit of surety in case of a surety company bond. Amended by L. 1901, ch. 524, as to return of compensation paid for an unexpired portion of a suretyship. General RrLEs of practice, 'No. 5 provide that all bonds and under- takings shall be duly proved and acknoivledged the same as deeds of real estate before received or filed. In no case shall an attorney or coun- selor be surety on any undertaking or bond required by law. 7. Surety. Discharge by extension. — An agreement between a creditor and his principal debtor to extend the time of payment of the debt, without the knowledge or consent of the surety, is a BOND. 145 discharge of the surety, although the surety has sustained no damage by the extension. Miller v. McCann, 7 Paige, 451. Rathbone v. Warren, 10 Johns. 587. "The surety is entitled at any moment after breach by the principal either to come into court to compel the performance of the engagement for which he is responsible, or to fulfill it himself, and then have recourse to legal proceedings to obtain an indemnity; and any right by which these rights are impaired or the possibility of resorting to them delayed, places him in a different situation from that to which he originally looked forward, and he is therefore discharged. ' ' Kingsbury v. Williams, 53 Barb. 142, 154. The surety can waive his right to be discharged on modifica- tion of the terms or time of payment. Metropolitan Life Ins. Co. v. Stimpson, 28 App. Div. 544, 51 N. Y. Supp. 226. Where there are five sureties and five separate bonds of in- fants, the sureties should justify in the aggregate penalties of the five bonds. Otherwise only one of them is good. Anonymous, 4 How. Pr. 414. 10 146 PRACTICAL REAL ESTATE LAW. BOUNDARIES. (See Description.) 1. In general. 2. May be fixed by action. 3. Boundary line agreement. 4. How established. 5. Side or center. 6. Statutes. 7. On water. 1. In general. A boundary is presumed to be a continuous line. — Where a physical division line between two adjoining tracts exists at its two extremities, and for the principal portion of the distance between, and as such is recognized by the parties, it will be considered a continuous line, although on a portion of the dis- tance there is no improvement or division fence. Rockwell V. Adams, 6 Wend. 467. Eev'd on other grounds, 16 Wend 285. A contract of sale with the boundaries indefinite, will not be specifically enforced, because the minds of the parties never met as to what was to be conveyed. Wadick v. Mace, 191 N. Y. 1, 83 N. E. 571, rev'g 118 App. Div. 777, 103 N. Y. Supp. 889. By adjoining owner. — Where a deed, in describing the premises conveyed, bounds them on one side by lands mentioned as owned by another person (speaking in the present tense) when in fact there is at the date of the deed, no land owned by such person in that place, the land recently owned by him will be intended; and the deed should receive that construction. Mason v. White, 11 Barb. 173. When the boundary in a description is by an adjoining owner, the statement of dimensions is not a warranty; and the recovery of a strip by an adjoining owner is not a breach of the covenant. Gunn V. Moore, 46 App. Div. 358, 61 N. Y. Supp. 519. BOUNDAEIES. 147 Where three boundaries are correct the word southeasterly in the fourth can be changed to southwesterly. Downes v. Wenninger, 207 N. V. 286, 100 N. E. 814. 2. May be fixed by action. Equity may interpose to fix boundaries which have been obliterated, on two grounds: first, where the owners of adjacent premises are responsible for obliterating the boundaries; and, second, to prevent multiplicity of suits. Erie Baaln Imp. Co. v. Smith, 135 App. Div. 365, 120 N. Y. Supp. 323. An action in equity will lie to ascertain and fix the boundary lines between the lands of the parties, when there is a confusion of boundaries shown, although it has not happened through the fault of either party. A confusion of boundaries exists, when, by the deeds thereof, or the acts of the owners or occu- pants, the boundaries cannot be ascertained by one party alone ; or except by the opinions or judgments of men, after an exami- nation of the deeds and the premises with a surveyor, aided, perhaps, by an examination of witnesses. hoji V. Dowie, 65 Baio. 237. Partition action. — When boundaries are uncertain in a con- veyance from a common owner of premises out of which the premises are carved, this grantor can ajid should, be made a party to a partition action, in order that the court may fix the boundary lines. Harris v. Harris, 75 App. Div. 216, 77 N". Y. Supp. 985. 3. Boundary line agreement. Boundary line agreements are not within the Statute of Frauds, because they cannot be considered as extending to the title ; nor do they have the operation of a conveyance, so as to pass title from one to the other. Such agreements proceed upon the fact that the true line of separation is not only fairly and truly in dispute, but that it is also undefined and unknown. Davis V. Townsend, 10 Barb. 333. Made without surrender of rights. — A boundary line agree- 148 PRACTICAL EEAL ESTATE LAW. ment, made without tlie surrender of any riglits by either party, is ineffectual unless the line established proves to be the true line. Sanford v. McDonald, 53 Hun, 263, 6 N. Y. Supp. 613. But the peoper way to deaw a bouijdaky line ageeemewt, where the parties have agreed upon a line, is to describe the line (from a sur- vey or otherwise accwately) and have each of the parties convey to the other; in consideration of $1, up to that line. When a boua'daey i,i2^e agreement is made by a chuecii^ it is either a conveyance of land, or it is not. If the former, an order of court is necessary; hut in the latter case, no authorization outside of the corporation itself is required. *4. How established. By parol. — An uncertain boundary line can be established by parol. Ambler v. Cox, 13 Hun 295. A fence for over twenty years, and marked trees, are convinc- ing evidence of the line. French v. Wray, 154 App. Div. 343, 139 N. Y. Supp. 330. A practical location of a boundary line, with acquiescence therein for more than twenty years, is conclusive on the parties and their privies. Pangburn v. Miles, 10 Abb. N. C. 42. Eeed v. Farr, 35 N. Y. il3. Eatcliffe v. Cary, 4 Abb. App. Dec. 4. "It is the settled rule in this state, resting upon public policy, that a practical location of boundaries which has been acqui- esced in for a long series of years will not be disturbed." Katz V. Kaiser, 154 N. Y. 294, 298, 48 N. E. 532. But the doctrine of practical location of a boundary line does not apply to a case where the description in the deed is clear and definite,- — only where it is ambiguous. Adams v. Eockwell, 16 Wend. 298, 303; cited with approval in Terry v. Chandler, 16 N. Y. 354. • See also NOTE N. Y. Ilpts., Bender Annotated Ed., Bk 4, pp. 106, 108. BOUNDAEIES. 149 A survey of land, and its location by marks on the ground, at the time of sale, is conclusive on parties buying adjacent lots as to the boundary lines between them; and no lapse of time is necessary. But in the. absence of estoppel, a practical location on other than deed lines requires an acquiescence for over twenty years. Herse v. Mazza, 100 App. Div. 59, 91 K. Y. Supp. 778. Practical location by user where the description is vague, acquiesced in for twenty years or more, will sustain the title up to the line used. Corning v. Troy Iron and Nail Factory, 44 X. Y. 577, 583. In all cases in which practical locations have been confirmed upon parol evidence, the acquiescence has continued for a long period, — ^rarely less than twenty years. Eeed v. McCourt, 41 N. Y. 435, 441. The location of a boundary line by buildings or fences for forty years, is conclusive, even though it was originally located by mistake. Baldwin v. Brown, 16 N. Y. 359. A boundary line is established by a stone fence thirty-five years old. An acquiescence by the proprietors of adjoining lands in an actual location of a boundary line for a length of time sufficient to bar an entry, is evidence from which the law will presume the existence of an argreement to abide by such location. Smith V. McAllister, 14 Barb. 434. A boundary line may he established by a stone icall, lulien the descrip- tion bounds by a neighbor's land, although a map by which the property is subdivided, gives incorrect dimensions. Disputed uncertain boundary lines fixed by practical location. McNichol V. Flynn, 167 App. Div. 646, 153 X. Y. Supp. 308. A fence two feet off the line will be treated as the true line after forty years. Granada v. D'Alessandro, 96 Misc. 468, 160 N. Y. Supp. 602. 150 PEACTICAL EEAL ESTATE LAW. A lane, fenced and used for thirty years, is conclusive as to boundaries. Marion v. Balsley, 195 Mich. 51, 161 N. W. 830. 5. Side or center. Boundary by land, structure or object.— "Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made a part, as a house, a mill, a wharf or the like, the side of the land or structure referred to is the limit of the grant; but where the boundary line is simply by an object, whether natural or arti- ficial, the name of which is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does, not in its description or nature, include the earth as far down as the grantor owns, and yet which has width, as in a case of a way, a river, a ditch, a wall, a fence, a tree or a stake, the center of the thing so running over or standing on the land is the boundary of the lot granted." Hoff V. Tobey, 66 Barb. 347, 351. When the boundary is by a stream, ditch, lane, alley, wall or way, the grant extends to the center, with an easement over the other half, and a reservation of an easement over the half con- veyed. But a boundary by other land, as land, carries title to the side only. Pitney v. Huested, 8 App. Dlv. ir^, 40 N. Y. Supp. 407. Boundary by street or road. — Where there is ambiguity with reference to the description or to the commencing point, or where there is doubt with reference to the intent of the grantor, the presumption that the fee will pass, will prevail; for in such case construction must be most favorable to the grantee. "Where a line runs to a stake or to a mark upon a fence or a tree upon the bank of a stream or upon the side of a highway, and thence along the meandering of the stream or along the high- way, the stake, mark or tree will be deemed to indicate the place of the line and not the end thereof, by reason of the dif- ficulty of maintaining a visible object marking the comer in the BOUNDARIES. 151 middle of the stream or in the roadbed of a highway, thus vest- ing the title in the grantee." . . . "Where a deed gives the boundaries of the land conveyed by courses and distances without mentioning a street by which the same is bounded on one side, but where it appears that the distance given does in fact carry the boundary to the street and along it, it is the same as though the boundary were described as running to the street and along the same, thus extending the title to the center." Van Winkle v. Van Winkle, 184 N. Y. 193, 204, 77 N. E. 33. The legal presumption obtains, in the absence of words neces- sarily excluding its operation, that a highway or street, when referred to as a boundary, is to be regarded as a line, and therefore included to its center. So with a tree, stone or other monument. Whites Bank v. Nichols, 64 N. Y. Co. Van Winkle v. Van Winkle, 184 N. Y. 193, 210, 77 N. E. 33. "The presumption is that a conveyance of land bounded by an existing street carries the fee to the center ; because a narrow strip, such as half of a street, is much more valuable to the grantee than to the grantor and the parties are supposed to have so dealt with the property as to bring out its greatest value." So also of an intended street. Matter of Ladue, 118 N. Y. 213, 219, 23 N. E. 465. A deed of land beginning at a point on the side of a road, and running thence by courses and distances back to the road, and thence along the road to the place of beginning, does not carry title to the center of the road. Kings County Fire Ins. Co. v. Stevens, 87 N. Y. 287. 6. Statutes. Where the division lines between towns and counties are rivers or creeks, the center lines thereof shall be the boundaries. L. 1807, eh. 90 Division fences of barbed wire prohibited. L. 1894, ch. 765. 152 PEACTICAL EEAL ESTATE LAW. Division fences to be maintained. R. S., pt. 1, ch. 11, tit. 4, art. 4. Former Town Law (L. 1890, cli. 569), §§ 100-109. Town Law (L. 1909, ch. 63), g§ 360'-369. *7. On water. Liberal interpretation of language. — In construing convey- ances of lands upon a stream or body of water, more liberality must be allowed in interpreting the language of the convey- ance, because of the difficulty of locating the bounds except by marks on the shore; and because, ordinarily, no monument can be placed in the center of the stream. Pulton Light Heat & Power Co. v. Stat© of New York, 62 Misc. 189, 116 N. Y. Supp. 1000. A description in a deed running to the bank of a nonnavigable stream, carries title to low-water mark, so that access may be had to the water, as distinguished from navigable streams, which are public highways, and where high water mark would be the boundary line. Ilalsey v. McCormiek, 13 N. Y. 296. A description running to some monument on the bank of a creek or river, does not limit the conveyance to the bank, but carries to the, center of the stream. Gouverneur v. National Ice Co., 134 N. Y. 355, 3:^ N. E. 805. But when the boundary is expressly declared to be the bank of the stream, title is not carried to the center. Town of East Fishkill v. Town of Wappinger, 97 App. Div. 7, 89 N. Y. Supp. 599. A deed beginning "on the bank" of a stream, thence leaving the stream, and coming back to the stream, and down the same as it winds and turns, conveys to the bank of the stream and not to its center. Babcock v. Utter, 1 Abb. Ct. App. Dec. 27. Where a grant is so framed as to touch the water of a river. ♦ See alao NOTE N. Y. Rpts., Bender Annotated Ed., Bk. 4, p. 707, Bk. 29, p. 754, Bk. 38, p. 509, Bk. 39, p. 145. BROKER. 153 and the parties do not expressly except the river (if it is non- navigable) one-half the bed of the stream is included by con- struction of law. Thus, where a description runs to a stake on the east bank of a river, and thence down the river as it winds and turns, the east half of the river is carried; and the stake is regarded as fixing the line or course of the grant at its end; and not as carrying no part of the land between the stake and the center of the stream. Luce V. Carley, 24 Wend, 451. A description bounded easterly by the bank or banks of a stream, carries title to the westerly water line. Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400, 94 N. E. 199. A boundary upon a natural pond or lake, carries title only to low-water mark. Wheeler v. Spinola, 54 N. Y. 377. BROKER. (See Loan.) Oral contract sufficient. — It is not necessary, to entitle a broker to his commission, that the contract of purchase shall be in writing; an oral contract is enough. Heinrieh v. Korn, 4 Daly 74. Acting without request of owner. — A broker who brings to an owner of real estate a subsequent purchaser, without a pre- vious request from the owner, and who does not inform the owner that he is acting as his broker, is not entitled to commis- sions. Fowler v. Hoschke, 53 App. Div. 327, 65 N. Y. Supp. 638. A broker must be the "procuring cause" of the sale to earn his commissions. The mere bringing of the parties together is not enough. Ware v. Doc Passes, 4 App. Div. 32, 38 N. Y. Supp. 673. Colwell V. TomipkftiB, 6 App. Div. 93, 39 N. Y. Supp. 478, afl'd 158 N. Y. 690. 154 PRACTICAL REAL ESTATE LAW. Negotiating sale without agency of broker employed.— Ono employing a broker to sell real estate, but himself negotiating a sale without the agency of the broker, is not liable to him for his commission. McOlave v. Paine, 49 N. Y. 561. Although an owner employs one or more brokers, he may negotiate and sell the property himself without liability to any- one for commission. iSoissdorflf V. Schmidt, 55 N. Y. 319, 321. The ordinary broker's contract, without exclusive agency to sell, does not prevent the owner from making a sale himself, or from employing another broker. Myers V. Batcheller, 177 App. Div. 47, 163 N. Y. Supp. 688. Persons procured refusing to close. — Commissions are not payable where the broker employed by the seller procures per- sons who take a written agreement from the seller to sell, but who do not sign the agreement to buy, and afterwards refuse to sign an agreement, or to take a deed. Kampf V. Dreyer, 119 App. Div. 134, 103 N. Y. Supp. 962. A broker by attempting to act for both sides loses his claim for commissions, and can enforce payment from neither one. Baer v. Koch, 2 Misc. 334, 21 N. Y. Supp. 974, 51 St. R. 427, 59 St. R. 680. Real estate brokers cannot act for both parties to a trans- action, without their consent. Nor can one recover commis- sions from a seller without employment either expressly or impliedly. Davenport v. Corbett, 112 App. Div. 382, 98 N. Y. Supp 403. But brokers employed as middlemen to bring sellers and pur- chasers together to enable them to make their own bargains, may charge commissions to both parties. They are not agents to buy and sell, and are not within the rule which prohibits their acting, without consent, as agents for both buyer and seller. • iSeigel V. Gould, 7 J-jana. 177. BUILDINGS. 155 Penal provisions requiring written authority. — The provi- sions of the Penal Code prohibiting the offering of real estate for sale or mortgage without written authority, is unconstitu- tional. Fisher Co. v. Woods, 187 N. Y. 90, 94, 79 N. E. 836. Commissions not liens. — Brokerage commissions are not claims upon the land. Thornal v. Pitt, 36 Super. (4 J. & S.), 379. Eev'd without opinion, 58 N. Y. 683. A brokerage contract for the sale of real estate is simply a personal contract between the seller and his broker; and, when recorded, in no ivOAj affects the title to real estate, and is no lien upon it. Power to deaw conteacts of sale. — It is doubtful if broker can draw contracts of sale of real estate. Penal Law (L. 1909, ch. 88), §270. BROOK. (See Water.) BUILDINGS. (See Fence; Real Estate.) Presumptively, buildings are part of the land, and belong to its owner. Talbot V. Cruger, 151 N. Y. 117, 45 N. E. 364. Buildings are real estate. "Where the land and buildings thereon belong to the same person, then the buildings are a part of the real estate and pass with it upon any conveyance thereof. In such a case the grantor can retain title to the buildings only by some reservation in the deed, or by some agreement in Avriting which will answer the requirements of the Statute of Frauds. Any other rule would be exceedingly dangerous, and would enable a grantor, in derogation of his grant, upon oral evidence, to reserve buildings and trees and other portions of 156 PEACTICAL REAL ESTATE LAW. his real estate, and thus, perhaps, defeat the main purpose of the grant." Leonard v. Clough, 133 N. Y. 292, 297, 31 N. E. 93. A building is a part of the real estate and must be conveyed as such. An unrecorded conveyance or bill of sale of a building, is void as against a subsequent purchaser of the land for value and without notice. Jospe V. Danis, 138 App. Div. 544, 123 N. Y. Supp. 360. An agreement by the owner of real estate for the sale of the buildings standing thereon, and their removal by the grantee, is void unless in writing. Buildings are real estate. "If the seller is to sever the thing from the land and deliver it, the con- tract may be oral; but if the buyer is to sever it and take it away, the case is within the Statute, and the contract must be in writing. ' ' Volk V. Olsen, 54 Misc. 227, 104 N. Y. Supp. 415. A building may establish a street line. — Plaintiff's building having stood over fifty years, and the public rights in the street having arisen by prescription, such rights are limited by actual user; and, in the absence of evidence of user of the land covered by the building, the building must be taken to be a monument establishing the street line. Lighten v. City of Syracuse, 48 Misc. 134, 96 N. Y. Supp. 692. Rev'd on other grounds, 188 N. Y. 499. A building may close a private street. — ^Where a purchaser of one lot in a tract, erected a building extending to the center of an alley shown on the map, on which his lot was bounded, and had there maintained it for over twenty years, the right of the purchaser of one of the other lots to maintain an action to have the building removed as an obstruction to the alley, was barred by the Statute of Limitations. The alley was never accepted as a public street. Corwin v. (>>rwin, 24 Hun 147. What is not an erected building.— A structure raised and covered by a roof, inclosed on two sides, part of the floors laid. BUILDINGS. 157 and all the window frames in, but not the sashes, is neither an erected nor a completed building. McGarry v. People, 45 N. Y. 153, rev'g 2 Lans. 227. A description running along the brick wall of a brick build- ing, which building has a stone foundation, limits the line to the face of the brick wall, and does not include the strip over the stone foundation which projects beyond the brick wall. Comes V. Minot, 42 Barb. 60. A TITLE CAKNOT BE EEJECTED BECAUSE OF A STUD PAETITION WALL covered with lath and plaster, in a three-story brich tenement house; even though the defective wall is invisible^ on account of its being built close to an adjoining wall. BUILDING LOAN ASSOCIATION. (See Mortgage.) BUILDING LOAN CONTRACT. (See Lien.) BUILDING PERMIT. (See Municipalities.) BULK SALE. (See Description.) 158 PEACTICAL REAL ESTATE LAW. 1. In general. 2. Statutes. BURIAL GROUND. (See Adverse Possession.) 1. In general. Dedication as cemetery. — The existence of a burial place on a farm is evidence of a dedication of it as a cemetery; and cannot he dis- regarded as long as evidence of such burial remains visible on the ground. Dedication as burying ground. — Long usage of land by the public as a burying ground, is strong evidence of a dedication to such use. Hunter v. Trustees of Sandy Hill, 6 Hill 407. The geave of a strangek to the title, found on a farm, should he removed; even though it does not constitute or indicate any easement or incumbrance. In Missouri, the presence of bodies of former owners, in a corner of a farm, does not establish a prescriptive right in the descendents to bury, or to restrain the disturbance of the graves by the OAvners of the land. Wooldridge v. Smith, 143 Mo. 190, 147 S. W. lOli). The existence of a tombstone on the premises^ with the name of a decedent, dated 1Y76, is no objection to the title, if Hhe records show no such man, as the oivner at any time. Burial eight cannot be lost either by abandonment or adverse possession. Adverse possession will run against a right to bury, if all traces of burial have been obliterated. Hunter v. Trustees of Sandy Hill, 6 Hill 407. Trusts of real property for the care of private cemetery lots, were validated by L. 1909, ch. 218. A TITLE CAJM BE PASSED TllEOUGH A CEMETEBY COBPOEATION formed BURIAL GROUND. 159 under the hiisiness corporation law, provided the other objects stated in its certificate of incorporation suffice to enable it to exist as a business ^corporation. A deed of a burial lot in a rural cemetery, incorporated under L. 1847, ch. 133, conveys an easement for burial only, and not the fee of the soil. Went V. Methodist Protestant Clnireh, 80 Hun 266, 30 N. Y. Supp. 157, aff'd 150 N. Y. 577, 6 Cye. 716. In the case of a conveyance of a lot "saving, excepting and reserving" a burying ground in a portion of it, to the heirs of the grantor's father, it was held that the grantor did not retain any beneficial interest in the fee of the burying ground, where no such claim was made for over a century. Blackman v. Striker, 142 N. Y. 555, 37 N. E. 484. A sale of real estate by a religious corporation in fee, "to be used for the purpose of a burial place only," is void as a fee transfer, without an order of court; but it is good as a grant of the use of the plot as a place of burial and the corporation has the right, under an order of court, to sell the land and remove the bodies of the dead. Matter of Reformed Presbyterian Cliureh, 7 How. Pr. 476. The prohibition against conveying land in a cemetery corpora- tion tract tifter burial in it, can be avoided by conveying back to the corporation and having it convey again. Membership Corporations Law (L. 1909, ch. 40), §§ 69 69a, as added by L. 1913, ch. 649. The statute for removing bodies from private burying grounds is L. 1897, ch. 463; repealed and re-enacted by Membership Corporations Law (L. 1909, ch. 40). See § 77. Membership Corporations Law (L. 1909, ch. 40), § 77, applies only to private cemeteries, and § 71, subd. 4, applies only to bodies in a lot of a cemetery corporation. Removal of bodies generally. — Bodies can be removed from a private lot by physically removing them. In other lots appli- cation must be made to the supreme or county court. Hunter v. Trustees of Sandy Hill, 6 Hill 407. Cooper V. First Presbyterian Church, 33 Barb. 222. 160 PEACTICAL EEAL ESTATE LAW. Pearsall t. Post, 20 Wend. Ill, aff'd 22 Wend. 425. Mitchell V. Thorne, 134 N. Y. 536, 32 N. E. 10. Matter of Board of Street Opening, 133 N. Y. 329, 335, 31 N. E. 102. Beatty v. Kurtz, 2 Peters oGli. Thompson v. Hickey, 8 Abb. N. 0. 159. Snyder v. Snyder, 60 How. Pr. 368. Windt V. German Eeformed Church, 4 Sandf. Ch. 471. In re Briok Presbyterian Church, 3 Edw. Ch. 155, 168. Cemetery lands cannot be taxed or mortgaged. — L. 1879, ch. 310, § 1, provides that no land actually used and occupied for cemetery purposes, shall be sold under execution, or for any tax or assessment; nor shall such tax or assessment be levied, collected or imposed, nor shall it be lawful to mortgage such land, or apply it in payment of debts ; so long as it shall continue to be used for such cemetery purposes. But § 2 provides for the collection of such judgment tax or assessment when said land shall cease to be so used. Matter of White Plains Presbyterian Church, 112 App. Div. 130, 98 N. Y. Supp. 63, Beal Property I-aw, § 450. Nor assessed. Matter of Reformed Protestant Dutch Church, 100 Misc. 143, 165 N. Y. Supp. 459. A cemetery lot in which dead bodies are buried, cannot be mortgaged, because it is against public policy. The Rural Cemetery Act provides that plots after interment shall be in- alienable. L. 1847, ch. 133. Thompson v. Hickey, 8 Abb. N. C. 159. Sale by legislative authority. — But the legislature can permit lands with bodies buried in them to be sold, if proper provision is made for the removal of the bodies. Angel V. Methodist Prot. Ch., 47 App. Div. 459, 62 N. Y. Supp. 410. Sale by church. — A burial right in a churchyard, as distingu- ished from an independent cemetery, is an easement in and not a title to the freehold, like a pew right; and must be understood as granted, subject to compensation, to such changes as the altered circumstances of the congregation or neighborhood may BURIAL GROUND. 161 render necessary. Such a conveyance by a church, though in the language of a fee, will be held to be a grant of a mere ease- ment, and not of an absolute estate in fee. The church may sell the ground upon making compensation to the owner of the burial rights ; and may remove the bodies, and the owner cannot prevent this by injunction. Richards v. N. W. Prot. Dutch Church, 32 Barb. 42, 11 Abb. Pr. 30. Acquisition of lands for cemetery purposes. — In Westchester and some other counties, neither any cemetery association nor other corporation or person can acquire any land for cemetery purposes, without the consent of the board of supervisors. Real Property Law, § 451. as amended by L. 1912, ch. 300. L. 1897, ch. 139, inadvertently repealed by Membership Corporations Law (L. 1909, ch. 40), and re-enacted by L. 1909, ch. 240, § 109. Partition will not lie to cut off burial rights at the suit of the lee owner if the holders of the burial rights protest. Clarke v. Keating, 102 Misc. 361, 160 N". Y. Supp. 24, rev'd 183 App. Div. 21S, 170 N. Y. Supp. 187. So partition will lie in such a case. 2. Statute's. Towns. — Supervisors authorized to take and hold by gift, public burying grounds for towns. L. 1826, ch. 67. Burial grounds by towns. L. 1873, ch. 46. Villages authorized to purchase land for cemeteries. L. 1864, ch. 117. No church can mortgage any ground used for interment, with- out the consent in writing of three-quarters of the congregation, acknowledged and recorded with the county clerk. L. 1842, ch. 215. Proceedings for the removal of bodies by a religious corpora- tion owning ground in any city. L. 1878, ch. 349. Exemptions of private burying grounds.— Private burying grounds of not over a quarter of an acre, exempted from sale on execution or by any other legal process, on recording descrip- tion in county clerk's office. L. 1847, ch. 85. 11 162 PEACTICAL EEAL ESTATE LAW. Incorporation of private and family cemeteries. — Certificate in county clerk's office. L. 1854, eh. 112. (All except § 11 repealed by Membership Corporations Law.) Amended by L. 1871, ch. 68. (Eepealed by Membership Corporations Law.) Amended as to additional land by L. 1877, ch. 469. (Repealed by Membership Corporations Law.) Amended as to removal of remains by supervisors of town, on consent of next of kin. L. 1893, ch. 59. (Eepealed by Membership Corporations Law.) Again amended as to removal of remains. L. 1897, ch. 463. (Repealed by Membership Corporations Law.) Not to be taxed or mortgaged. — No land actually used for cemetery purposes to be taxed, assessed or mortgaged. L. 1879, ch. 310. Rural Cemetery Associations. Incorporation. — L. 1847, ch. 133. (All except § 10 repealed by Membership Corporations Law, L. 1909, ch. 140.) Cemetery property not liable to tax, assessment or sale on execution; and when sold to individuals, shall, after interment, be inalienable. Cannot take title to any more lands in Westcliester county without the consent of the board of supervisors, after six weeks notice of application published in every newspaper in the county. L. 1852, ch. 280. ' (§§ 1, 2 repealed by Membership Corporations Law.) § 4 amended as to notice of desire to purchase. L. 1877, ch. 156. Amended by L. 1853, ch. 122. (Eepealed by Membership Cor- porations Law.) Amended by L. 1860, ch. 163. (Eepealed by Membership Cor- porations Law. ) Act exempting all lands actually in use from ' ' all public taxes, rates and assessments." L. 1869, ch. 708. (Eepealed by Mem- bership Corporations Law.) Authorized to take deeds of burial grounds from religious societies and trustees. L. 1870, ch. 527. (Eepealed by Member- ship Corporations Law.) Board of supervisors to consent; but not over two hundred and fifty acres in any county to be taken. L. 1871, ch. 164. (Eepealed by Membership Corporations Law.) BURIAL GROUND. 163 Amended to provide for sale to repay cost of improvement if dead are removed. L. 1871, ch. 378. (Repealed by Member- ship Corporations Law.) May apply to supreme court to sell unused lands.— L. 1871, ch. 419. (Repealed by Membership Corporations Law.) Amended by L. 1873, ch. 361. (Repealed by Membership Cor- porations Law.) Amended by L. 1874, eh. 245. (Repealed by Membership Cor- porations Law. ) § 10 of L. 1847, ch. 33, amended as to exemption from taxa- tion. L. 1877, ch. 31, and by L. 1904, ch. 237. (Repealed by Membership Corporations Law.) L. 1868, ch. 402, amended by L. 1877, ch. 426, and by L. 1881, ch. 412. (Repealed by Membership Corporations Law.) § 7 of L. 1847, ch. 133, amended as to division and sale of lots. L. 1879, ch. 108. (Repealed by Membership Corporations Law.) L. 1868, ch. 402, amended as to taxing lots by trustees. L. 1879, ch. 411. (Repealed by Membership Corporations Law.) Amended by L. 1888, ch. 415. (Repealed by Membership Cor- porations Law.) Lots made inalienable after interment. L. 1880, ch. 566. (Repealed by Membership Corporations Law.) May sell plots. — Deeds to be executed under corporate seal and signed by vice-president or treasurer. L. 1888, ch. 484. (Repealed by Membership Corporations Law.) Amended as to amount of land, maps, conditions and lots, and record of interments. L. 1891, ch. 382. (Repealed by Mem- ship Corporations Law.) Not to take lands in Westchester and other counties without the consent of the board of supervisors. L. 1889, ch. 389. (Repealed by Membership Corporations Law.) May take and convey real estate up to $200,000 for business purposes and not for burials. L. 1892, ch. 498. (Repealed by Membership Corporations Law.) § 1 of L. 1847, ch. 133, amended as to incorporation. L. 1893, ch. 34. (Repealed by Membership Corporations Law.) Dissolution and sale of land by order of court. L. 1895, ch. 149. (Repealed by Membership Corporations Law.) Authorized to sell land from which bodies have been removed, 164 PRACTICAL EEAL ESTATE LAW. upon order of court, after certain proofs. L. 1897, ch. 538. (Repealed by Membership Corporations Law.) Rural cemeteries not to acquire any land in certain counties where five hundred acres are already owned by cemetery asso- ciations. L. 1902, ch. 73. (Repealed by Membership Corpora- tions Law.) Cemetery trusts provided for by adding § 150 to the County Law (L. 1892, ch. 686). L. 1906, ch. 362. Real Property Law, § 450. Lands used for cemetery purposes cannot be sold on execution, taxed, assessed or mortgaged. Amended by L. 1918, ch. 404, by adding in the middle "ex- cept cemetery lands in which no interments. " Former Membership Corporations Law (L. 1895, ch. 559). Cemetery Corporations. — §§ 40-57. (Repealed by Member- ship Corporations Law, L. 1909, ch. 40.) Amended as to taxation of lot owners by the corporations. L. 1897, ch. 477. Amended by L. 1900, ch. 761, and by L. 1905, ch. 123. (Repealed by Membership Corporations Law, L. 1909, ch. 40.) §§ 61, 62, 63 added, authorizing owners of lots in unincor- porated cemeteries to incorporate. L. 1900, ch. 480. (Repealed by Membership Corporations Law, L. 1909, ch. 40.) § 57 amended by L. 1901, ch. 390. (Repealed by Membership Corporations Law, L. 1909, ch. 40.) § 57 again amended by L. 1904, ch. 429. (Repealed by -Mem- bership Corporations Law, L. 1909, ch. 40.) §§ 49, 52 amended by L. 1907, ch. 486. (Repealed by Member- ship Corporations Law, L. 1909, ch. 40. ) Membership Corporations Law (L. 1909, ch. 40). §§ 60-84. § 85 added by L. 1912, ch. 151. Whenever, under any general or special law, a cemetery is abandoned, or taken for public use, the town board must make an accurate copy of all tombstone inscriptions at the time the bodies are removed; certify same with name and location of cemetery; and file one copy with town or city clerk, and with the state historian at Albany. CHAMPERTY. 165 §§ 64, 72 amended by L. 1912, ch. 301. § 85 added by L. 1912, ch. 315. § 69a added by L. 1913, ch. 649, as to lots held in inalienable form. § 451 added to Real Property Law by L. 1909, ch. 274, for- bidding any person to set apart or use any land in Westchester and other counties,- without the consent of the board of super- visors. CERTIFICATE OF REDUCTION. (See Mortgage.) CHAMPERTY. Revised statute provisions. — "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. ' ' 1. R. S., 739, § 147. The old common-law doctrine of champerty and maintenance is no longer in force; and the only provisions of law now relating thereto are Code Civil Procedure, §§ 73, 74, relating solely to attorneys buying and loaning on claims; and they have no special bearing on real estate. Browne v. West, 9 App. Div. 135, 41 N". Y. Supp. 146. Deed to owner in possession. — ^A conveyance by an owner to a third party, is void as against the owner in possession, under the Champerty Act; but a deed to the owner in possession, from the same grantor, is good, because he had the right to take the title, even though he took it with knowledge of the previous deed. Dever v. Hagerty, 169 N. Y. 481, 63 N. E. 586. The possession referred to in the act must be under some specific title, and not a general assertion of ownership. Crary v. Goodman, 22 N. Y. 170. Higinbotha-m v. Stoddard, 72 N. Y. 94, 100. 166 PRACTICAL REAL ESTATE LAW. The phrase "claiming under a title" in Real Property Law, § 225 (now Real Property Law, § 260), means "a title under some written instrument purporting to convey the lands to the claimant, or else some judgment, decree or executed process of a court. ' ' Green v. Horn, 207 N. Y. 489, 101 N. E. 430. A conveyance is not to be deemed void as a deed of land held in adverse possession, on mere proof that, at the time of such conveyance, the lands were in the possession of a third party; nor does the statute apply to judicial sales. Possession follows the legal title, and casts upon him who resists a claim under that title, the burden of proving adverse possession for twenty years. Stevens v. Hauser, 39 N. Y. 302. Deed of grantor operative as to all except person in possession. — ^A conveyance of lands held adversely, while void as to the person thus holding, yet is operative as to all the rest of the world, and passes the grantor's title. If, after such a deed, the person who held adversely, voluntarily abandons possession, the grantee may enter; and if a stranger enters, the gTantee may bring ejectment and oust him. But if the adverse holder con- tinue in possession after the deed, the grantor is the only person who can sue for the land; and a recovery by him will enure to the benefit of his grantee. Livingston v. Proseus, 2 Hill 526. A deed to a person other than the one in possession, is good as between the parties, but void only as to the person in possession. The latter can take a later deed from the same grantor which will cut off the champertous one. Sheridan v. Cardwell, 145 App. Div. 609, 130 N. Y. Supp. 638. A WIFE CAN RELEASE HEE I'N'CHGATE DOWER to a stranger to the per- son in possession, if her husband joins. The act does not apply to judicial sales. — ^Hence a foreclosure sale of premises actually in the possession of a tax lessee, is good. De Garno v. Phelps, 176 N. Y. 455, 68 N. E. 873, rev'g 64 App. Div. 590, 72 N. Y. Supp. 773. CHARITABLE USES. 167 Penal Code, § 130 (now Penal Law, L. 1909, ch. 88, § 2032), makes it a misdemeanor to buy or sell land unless the grantor or his predecessors in title have been in possession for one year. But the buyer must have had knowledge of the facts. Belcher v. Belcher, 134 App. Div. 7S6, 119 N. Y. Supp. 144. A purchase of land during the pendency of a suit concerning it, if made with knowledge of the suit and not in consummation of a previous bargain, is champertous and void. Jackson v. Ketchum, 8 Johns. 479. Grantor possessed of greater part of land conveyed. — The Champerty Act does not invalidate, in whole or in part, a gran'; where the grantor is possessed and delivers possession of the greater part of the land conveyed, but by reason of a disputed boundary line, a small part of it is not in his actual possession at the time of the delivery of the deed. Danziger v. Boyd. 120 N. Y. 628, 24 N. E. 482. CHANCERY. (See Action.) CHARGE. (See Legacy.) *CHARITABLE USES. Devises of the income only of permanent funds to charitable corporations, are valid, because these corporations are author- ized by their charters to take and hold property; and are thus exempted from the statutes against perpetuities. Adams v. Perry, 43 N. Y. 487, 500. *See also Schouler on Wills (5th ed.) ; see NOTE, N. Y. Rpts., Bender An- notated Ed., Bk. 31, p. 133, Bk. 33, p. 192. Bk. 37, p. 585. 168 PRACTICAL REAL ESTATE LAW. Such gifts are not trusts in the legal sense, although the word trust is used. Tabernacle Baptist Church v. Fifth Avenue Baptist Church, 60 App. Div. 327, 70 N. Y. Supp. 181, aff'd 172 N. Y. 598. A gift of the income of property is a gift of the property itself, where there is no limitation of time attached to the gift. Matter of Smith, 131 N. Y. 239, 246. 30 X. E. 130. The act to regulate gifts for charitable purposes, L. 1893, ch. 701, restored the ancient law concerning charitable uses for indefinite beneficiaries, and the practice governing the admin- istration of such trusts. By said act it was intended to restore to the supreme court, as the court of equity, the power formerly exercised by courts of chancery; and such court must execute the trusts. It takes charitable bequests out of the operation of the statute against perpetuities, and was passed to save chari- table bequests after the failure of the court to uphold the will of Samuel J. Tilden. Allen V. Stevens, 161 N. Y. 122, 55 N. E. 568. In foresclosing a prior mortgage to cut off such a trust the attorney general must be brought in under certain provisions of L. 1893, ch. 701. Former Real Property Law, § 93, or Real Property Law, § 113. Fowler, Real Property Law of New York (3d ed.), p. 539. What trustees to convey. — Where such a trust is vested in the board of trustees of a church, shifting from time to time in its personnel, conveyance should he made by the original trustees; but if changes have been made in the membership, both groups of trustees should convey. CHATTEL REAL. (See Lease.) CHILDREN. 169 ♦CHILDREN. (See Adoption; Infants; Unborns.) 1. In general. 2. When grandchildren included. 3. When grandchildren not included. 4. Statutes. 1. In general. A father is not obliged to support his minor children, when they have property that may be applied for that purpose. Matter of Marx, 5 Abb. N. C. 224. The word includes only the immediate legitimate descendants, and not a stepchild. Lawrence v. Hebard, 1 Bradf. 252. In re Hallet, 8 Paige 375. It means, prima facie, legitimate children, as much as if the word legitimate were written before it. Collins V. Hoxie, 9 Paige 81. Children in a will may refer to illegitimate children of the testator, even though he has legitimate ones. Gelston v. Shields, 16 Hun 143, aff'd 78 N. Y. 275. The children of a " second marriage, ' ' referred to in a will of a woman, made after her second husband's death, were held to refer to her second husband's children, and her stepchildren, where she had none by him. Herrick v. Snyder. 27 Misc. 462, 59 N. Y. Supp. 229. As to a devise to nephews and nieces including their children, see under Devise (Construction). * See also Schouler on Wills (5th ed.) ; see NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 32, pp. 72, 1071. 170 PEACTICAL EEAL ESTATE LAW. 2. When grandchildren included. In a devise of residuary estate the word children will be held to include grandchildren, in order to prevent an intestacy. Prowitt V. Rodman, 37 N. Y. 42. Descendants sometimes included. — The word will sometimes be read as meaning descendants. In re Bender, 44 Misc. 79, 89 N. Y. Supp. 731, 4 Mills 344. The word children, in a will devising premises to two daughters "and their children," is a word of purchase, and not of limitation. This lets in the grandchildren as tenants in com- mon with the children, and it cannot be determined until both daughters die, in whom the title will utilmately vest. (But issue is a word of limitation. Hilliker v. Bast, 64 App. Div. 552, 72 N. Y. Supp. 301.) The word children in a will may include the child of a child who has predeceased the testator. 3. When grandchildren not included. The word children in a will does not include grandchildren, when the word is used in its ordinary sense. Matter of Truslow, 140 N. Y. 599, 603, 35 N. E. 955. Schneider v. Heilbron, 115 App. Div. 720, 101 N. Y. Supp. 152. Matter of Tone, 186 App. Div. 363. Held not to include grandchildren when words of survivor- ship were used, which did not refer to the time of the testator's death, on account of an intervening life estate. MuUarky v. Sullivan, 136 N. Y. 227, 32 N. E. 762. The word does not include grandchildren, unless there is something in the will to show that the word was used in a broader sense. When a testator writes or speaks of his children in general terms he does' not include grandchildren. Pimel V. Betjemann, 183 N. Y. 194, 76 N. E. 157. Matter of Phipard, 182 App. Div. 357, 169 N. Y. Supp. 554, aflf'd 223 N. Y. 676, 119 N. E. 1072. "Sometimes, it is true, grandchildren and issue or descend- ants generally are permitted to take under an enlarged con- CHILDREN. 171 struction of the term 'children.' " But the general rule is "that where there are children who properly answer this description, grandchildren cannot be permitted to share along with them. ' ' Mowatt V. Carow, 7 Paige 328. Guernsey v. Guernsey, 36 N. Y. 267, 272. The word children in a will does not include grandchildren, unless the will contains something to show that the word was used in a broader sense. Matter of King, 217 N. Y. 358, 111 N. E. 1060. Does not include grandchildren. Matter of Pulis, 220 N. Y. 196, 115 N. E. 516. Matter of Montgomery, 177 App. Div. 799', 165 N. Y. Supp. 52. The word "child" in Decedent Estate Law (L. 1909, ch. 18), § 17, does not include a grandchild. (Giving over one-half to charitable corporations by will.) Matter of Tone, 103 Misc. 618, 170 N. Y. Supp. 844, aff'd 186 App. Div. 36, 174 N. Y. Supp. 391. The word grandchildren in a will does not include great grandchildren. Matter of Rowe, 173 App. Div. 961. 4. Statutes. Orphan asylums required to keep records of children. L. 1 869, ch. 411. Adoption Act, L. 1873, ch. 830. Proceedings before county judge. Consent of child, if over twelve. (Repealed by Domestic Relations Law, L. 1909, ch. 19.) Adoption of children from institutions not to carry the right of inheritance from foster parents. L. 1884, ch. 438. (Partially repealed by Domestic Relations Law, L. 1909, ch. 19.) Act of 1873 amended as to property rights. L. 1887, ch. 703. (Repealed by Domestic Relations Law, L. 1909, ch. 19.) Again amended as to proceedings before county judge ; and recording of consent of nonresident parents. L. 1888, ch. 485. (Repealed by Domestic Relations Law, L. 1909, ch. 19.) 172 PRACTICAL REAL ESTATE LAW. § 11 amended by L. 1889, cli. 58. Consent of parent of aban- doned obild not necessary. (Repealed by Domestic Relations Law, L. 1909, eh. 19.) Illegitimate children wbose parents have intermarried, or shall do so, considered legitimate. L. 1895, ch. 531. (Repealed by Domestic Relations Law, L. 1909, ch. 19.) Farmer Domestic Relations Law (L. 1896, ch. 272), in effect October 1, 1896. (Repealed by Domestic Relations Law, L. 1909, ch. 19.) § 18. Marriage of parents legitimatizes an illegitimate child. Amended by L. 1899, ch. 725. § 60. Adoption by this act exclusively. § 61. Whose consent necessary. § 62. Requisites of voluntary adoption. Amended by L. 1899, ch. 498. § 63. Order by county judge or surrogate filed in county clerk's office. § 64. Effect of adoption. Child inherits from both natural and foster parents. Amended by L. 1897, ch. 408. § 65. Adoption from charitable institutions by instrument filed and recorded with county clerk. Domestic Relations Law amended as to marriages by L. 1907, ch. 742. Domestic Relations Law (L. 1909, ch. 19). § 87. Record of children to be kept by orphan asylums. § 112. Requisites of voluntary adoption. § 113. Order. § 114. Effect of adoption. § 115. Adoption from charitable institutions. § 116. Abrogation of voluntary adoption. Amended by L. 1910, ch. 154^ L. 1913, ch. 38. § 111, subd. 3, amended as to consents to adoption. L. 1913, ch. 569. §§ 112, 113, 114, 115 amended as to adoption of children. L. 1916, ch. 453. CHURCH. 173 *CHUROH. 1. In general. 2. Conveyance by. 3. Conveyance to. 4. Conveyance to another church. 6. After dissolution. 6. By royal patent. 1. In general. The first statute foe correcting conveyances to religious CORPORATIONS UNDER WRONG NAJiES^ hy filing Certificates in the reg- ister's office, was L. 1888, ch. 459. Change of name. — General Corporations Law (L. 1909, cli. 28), §§ 60-65, as amended by L. 1910, ch. 296; L. 1913, ch. 721; L. 1917, ch. 177. A partition action lies between churches. — The order of court required for the sale of real estate under Eeligious Corporations Law (L. 1909, ch. 53), § 12, relates solely to voluntary sales, and not to judicial sales in partition of land held jointly by two corporations. New York Home Missionary Sec. v. First Freewill Baptist Churcli, 73 Misc. 128, 130 N. Y. Supp. 879. Church real estate is exempt from taxation (Snyder, Laws of New York Relating to Religious Corporations [2d ed.], p. 85), but not from assessments for local improvements. Harlem Presby. Church v. Mayor of Xew York, 5 Hun 442. But a church used for burial purposes can be assessed. Matter of Trustees of Reformed Protestant Dutch Church, 100 Misc. 143, 165 N. Y. Supp. 459. Church discipline cannot supersede the laws of the state. Matter of Third M. E. Church of Brooklyn, 67 Hun 86, 21 N. Y. Supp. 1105, aff'd 142 N. Y. 638. Therefore, a deed to the archbishop or bishop of the Catholic church, f r in his individual name^ with habendum in fee, to him, his heirs and os- Sce also NOTE, N. Y. Epts., Bender Annotated Ed.; Bk. 4, p. 480. 174 PRACTICAL REAL ESTATE LAW. signs, the grantee being named with only the word " Reverend " added, vests the title in the individual grantee, even though the church may have furnished the purchase money, and though the grantee may he prohibited by his votus and by church canons from acquiring property as an iivdividual. A religious corporation cannot be established to teach "new thought," — The filing of a certificate and approval of a supreme court justice are not alone effective to make a corporation. New Thought Church v. Chapin, N. Y. L. J., Aug. 5, 1913 (unreported). Certificate not void; non-user. — A certificate of incorporation was filed one month after the meeting. Held, that the defect, if any, did not make the certificate void. A claim that the cor- poration had ceased to exist, from non-user and failure to keep up religious services or a church organization, cannot be taken advantage of or enforced, except by the sovereign power to which the corporation owes its life. Matter of Congregational Church, 131 K. Y. 1, 30 X. E. 43. Consolidation. — Religious corporations cannot be formed under L. 1848, ch. 319, because the former Membership Corpora- tions Law (L. 1895, ch. 559), provides that all corporations formed under acts repealed by that law shall become member- ship corporations (and, except as to § 6, L. 1848, ch. 319, was repealed thereby). Therefore, a benevolent society incorpor- ated under the Act of 1848, cannot consolidate with a church formed under the Act of 1813, ch. 60, because the two corpora- tions are not in the same category. No consolidation of corpora- tions was allowed at common law. Selkir v. Klein, 50 Misc. 1 V. Lamb, 131 N. Y. 227. 30 N. E. 133. 4. To a class. Time of determination of membership. — ^Upon a devise to a class, its membership is to be determined as of the time when possession is given by the will. Seitz V. Faversham, 141 App. Div. 903, 126 N. Y. Supp. 801, mod. 205 N. Y. 197. A devise to "the nephews and nieces of" the late husband of the testatrix who were living at his decease, is a devise to a class; hence the proceeds of sale should be divided among such nephews and nieces as were living at the death of the testatrix. Matter of King, 135 App. Div. 781, 119 N. Y. Supp. »69, rev'd 200 N. Y. 189. A gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascer- tained at a future time, who are all to take in equal or in some DEVISE. 347 other definite proportions, the share of each being dependent for its amount upon the actual number. Matter of Kimberly, 150 N. Y. 90, 44 N. E. 945. A gift by will to a class, naming the persons who compose that class, conveys the title to the individuals composing the class, as tenants in common and not as a class; and, on some of them predeceasing the testator, their shares do not go to the sur- vivors, but lapse and go to the testator's heirs. Horaberger v. ilOler, 28 App. Div. 199, 30 N. Y. Supp. 1079, aff'd 163 N. Y. 578. Matter of Kimberly, 150 N. Y. 90. 44 N. E. 945. McDonald v. McDonald, 71 App. Div. 116, 75 N. Y. Supp. 674. Remainder to heirs, share and share alike.— Under a will de- vising real estate after the death of the testator 's widow, to his heirs and his wife's heirs, their heirs and assigns, share and share alike, all heirs of either at the time of the widow's death, take percapita as a single class. Blisson V. West Shore R. R. Oo., 143 N. Y. 125, 38 N. E. 104. When a devise is made direct to a wife and children, in the absence of clear language indicating a gift to a body or class, it should be held that they take individually, as tenants in com- mon; and that their interests do not depend upon survivorship. Matter of Russell, 168 N. Y. 169, 61 N. E. 166. 5. On condition. Legacies made a charge upon land devised. — A devise of land on condition that the devisee pay certain legacies, makes them a charge thereon in equity. Although, by accepting the devise, the devisee becomes personally liable for the payment of the leg- acies, yet the lands devised remain, in equity, as security for the payment. Loder v. Hatfield, 71 X. Y. 92, 95. A devise of land to a testator's son, on condition that he pay within a specified time after testator's death, certain legacies which are made a charge upon the land devised, is not forfeited by the failure to pay such legacies within the designated time. 348 PRACTICAL REAL ESTATE LAW. The limitation to pay legacies, is a covenant, and not a condi- tion. Cunningham v. Parker, 146 N. Y. 29, 40 N. E. 635. A devise of land upon condition that the devisee pay a legacy, is a condition subsequent; and the title vests subject to the charge. In such a case, the remedies of the legatee are con- current at law and in equity, and the six year Statute of Limi- tation applies. The fact that the will is sealed, does not make an action to recover such a legacy, an action upon a sealed in- strument, within the meaning of the Statute of Limitations; be- cause the action is actually founded upon the implied promise of the devisee to pay, arising from his acceptance of the land. Zweigle v. Hohmaji, 75 Hun 377, 27 N. Y. Supp. 111. Performance of condition presumed. — Upon a devise to a per- son on condition that he pay at a fixed period, a certain sum in cash, the performance of the condition will be presumed, in an action brought twenty-nine years after the cause of action ac- crued. Fox V. Phelps, 17 Wend. 393, aff'd 20 Wend. 437. Upon a devise to one, with a devise over in case the first de- visee MAEEiES;, the mari'Mge referred to, is a marriage during the life of the testator, upon analogy to the court rulings that the word death in a will, means a death during the testator's life time. And this, in spite of the fact that death is sure to occur, while a marriage may never tahe place. On condition devisees reside in certain town.— The devise of all the testator's right in certain lands to devisees, in case they continue to reside in a certain town, passes the fee, if the testa- tor has one; and the condition subsequent (if it is a condition at all), is void as repugnant to the nature of a fee. Newkerk v. Newkerk. 2 Caines 345. On condition devisee reside on land. — A devise of premises on condition that the devisee remove to and reside on the land and make it his permanent home within two years. Held, that a residence of two months on the premises, fulfilled the condi- tion, if made in good faith, with the purpose of making it his DEVISE. 349 permanent home; and vested the title in him absolutely; and that his subsequent removal did not operate to defeat his title. Brunda^e v. Domestic &. Foreign Missionary Society, 60 Barb. 204. A condition that the devisee shall lose his devise if he con- tests the will, is void as to an infant, because it is an attempt to subvert judicial proceedings, as an infant is under the protec- tion of the court. Bryant v. Thompson, 59 Hun 545, 14 N. Y. Supp. 28, app. dis. 128 N. Y. 426, 28 N. E. 522. Upon a conditional devise failing, the ultimate devise takes effect, no matter what the reason for the failure of the condi- tional devise was. Ranken v. Janes, 1 App. Div. 272, 37 N. Y. Supp. ]59. When a devise is limited to take effect on a condition an- nexed to a preceding estate, if the preceding estate should never arise, the remainder will nevertheless take place, the first estate being considered only as a preceding limitation; and not a pre- ceding condition to give effect to a subsequent limitation. United States Trust Co. v. Hogencamp, 191 N. Y. 281, 84 N. E. 74, aff'g 115 App. Div. 899. On condition of annulment of legal adoption. — ^A devise to a daughetr on condition subsequent that she should, within six months, annul a legal adoption of an infant, is void as against public morals; and the daughter takes without condition. Matter of Anonymous, 80 Misc. 10, 141 N. Y. Supp. 700. An absolute devise to a wife, with condition as to remarriage, construed in Matter of Biles, 88 Misc. 452, 151 N. T. Supp. 1097. Held, that she took a conditional fee, subject to be reduced to only a dower, in case she remarried. *6. Construction. A devise of a life estate, with power to dispose of the realty, gives an absolute fee under Real Property Law, §§ 149, 151, 153. Strafford v. Washburn, 145 App. Div. 784, 130 N. Y. Supp. 571, rev'd 208 N. Y. 536, 101 N. E. 1123. * See also KOTE, N". Y. Rpts., Bender Annotated Ed., Bk. 10, p. 374, Bk. 21, p. 681. 350 PEACTICAL EEAL ESTATE LAW. A devise of the income and rents of real estate, without quali- fication, and without disposing of the body of the land, carries with it the land itself. So also as to personalty, although the legatee is a corporation. Reform Society v. Case, 3 Dem. 15. Hatch V. Basaett, 52 N. Y. 359. A devise to a wife for her support, carries a fee. Grain v. Wright, 114 N. Y. 307, 310, 21 N. E. 401. A devise to a wife, and at her death, any property left to go to her children, gives to the wife an absolute power of disposition and consumption; and the remainder unconsumed and undis- posed of, goes to the children. Thomas v. WoWord, 49 Huu 145, 1 N. Y. Supp. 610. A devise to a wife ' ' for her own personal use and benefit dur- ing her natural life," and at her death, "all that may remain" to go to the children. Held, to give the wife an absolute power of disposition over the real estate, and the right to use the pro- ceeds. Mitchell V. Van Allen, 75 App. Div. 297, 78 X. Y. Supp. 149. But she cannot dispose of it at her death. Baumgras ^. Baumgias, 5 Misc. 8, 24 N. Y. Supp. 767. Devise to a wife, ' ' but on her decease, the remainder thereof, if any, I give and devise to my children." Held, that the widow took a life estate, with a power of sale (implied from the use of the words if any), to be exercised during her life for her benefit; and that the children took a remainder in fee, sub- ject to the exercise of the power. Leggett V. Firth, 132 N. Y. 7, 29 N. E. 950. A devise in remainder to, or for the benefit of, a person not in being when the will takes effect, was held valid, where there was an intervening trust. Manice v. Manice, 43 N. Y. 303. The devise by a testator to his widow, of the use of all his real estate as long as she shall remain his widow, does not deprive DEVISE. 351 her of her right to her dower in his real estate after she re- marries. Brown v. Brown, 41 N. Y. 507. Upon a devise to a widow ua'til she remarries, and then to be HELD IN TRUST EOR HER DAUGHTER DURING MINORITY, title CWn Only he made during the life of the widow unremarried, by foreclosing a mortgage ante-dating the testator's death; or by a tax foreclosure. . A devise to a wife, "while she remains my widow" and over, if she remarries, means over if she dies also. Matter of Schriever. 221 N. Y. 268, 116 N. E. 995. A devise of his wife's dower to her by a testator, construed to mean a devise to her of an undivided third of his real estate. Robertson v. Hillman, 3 Hun 244, 5 T. & C. 534, aff'd 62 N. Y. 644. A devise of one-third to a wife, "that is to say,, her dower right," held to convey a fee, on the principle of so construing wills as to prevent intestacy. Schult V. MoU, 132 N. Y. 122. 30 N. E. 377. Upon a devise to an unmarried woman, and if she marry, to her issue and husband; if she dies unmarried, she takes a fee. Morehouse v. Morehouse, 33 App. Div. 250, 53 N. Y. Supp. 727, aflf'd 161 N. Y. 654. A devise to testator's son for life, with full power to devise, but with no power to grant or convey the same, with remainder over to his heirs if he dies intestate; passes the fee to the son un- der 1 R. S., 732, 733, §§ 81-84, providing that a life tenant to whom the power to devise is given, shall be entitled to an ab- solute fee. • The attempt to restrain the power to convey by deed, is inoperative. Deegan v. Wade, 144 N. Y. 573. 39 N. E. 692. A devise to a person to use in "the Master's work," is in- valid, either as an absolute gift to the person or as a charitable trust. Matter of Seymour, 67 Misc. 347, 124 N. Y. Supp. 637. Wife and widow. — ^Wife, in a devise, means the wife existing 352 PRACTICAL REAL ESTATE LAW. at the time of the making of the will; but widow, has a broader application, and includes such wife as may survive the husband. Meeker v. Draffen, 137 App. Div. 537, 121 N. Y. Supp. 1051, aff'd 201 N. Y. 205, 94 N. E. 626. The words "'his wife," followed by her name, are words of description only; and she gets the devise, even though she is divorced. Matter of Miller, 171 App. Div. 229, 157 N. Y. Supp. 360, aff'd 219 N. Y. 572, 114 N. E. 1072. A devise to nephews ■ and nieces does not include grand- nephews and nieces. Matter of Woodward, 53 Hun 466, 6 N. Y. Supp. 186, aflf'd 117 N. Y. 522. The term "nephews and nieces" may include children of de- ceased nephews and nieces. Matter of Von Rimpst, 99 Misc. 169, 165 N. Y. Supp. 541 rev'd 178 App. Div. 475. A devise to nephews and nieces, does not incllide the adopted daughter of a deceased sister. Matter of Halght, 63 Misc. 624, 118 N. Y. Supp. 745. A devise in fee with a later invalid provision that the land must never be sold, is a valid devise in fee. Hacker v. Hacker, 153 App. Div. 270, 138 N. Y. Supp. 194. A devise of a home in a homestead, includes maintenance, board, clothing and medical attendance. Matter of Burr, 83 Misc. 240, 144 N. Y. Supp. 926. A devise to daughters unmarried at a certain date, is a pro- vision for maintenance, and not in restraint of marriage. Robinson v. Martin, 200 N. Y. 159, 93 N. E. 488. A devise to two daughters "jointly" (in a will drawn by a lay- man), held to vest title in them as tenants in common, and not as joint tenants. Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738, rev'g 144 App. Div. 897, 129 N. Y. Supp. 438. DEVISE. 353 A DEVISE TO CEETAIN NAMED INDIVIDUALS AND TO THEIE ISSUE EEP- EESENTATivELY^ meoms that in case of the death of a devisee before that of the testator^ fiis issue shall take per stirpes. A devise to four daughters for life, although embraced in a single clause in which all are named, is, by well settled constmc- tion of similar clauses, a devise to each in severalty of a one- fourth of the property. Monarque v. Monarque, 80 N. Y. 322. A devise of all of testator's lands in a particular place, with- out anything to indicate an intention to pass after-acquired property, will only pass title to such land as the testator had at that place at the date of making his will. This, too, in spite of 2 E. S., 57, § 5, declaring that "every will that shall be made by a testator, in express tertns, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate, which he was entitled to devise, at the time of his death;" because, if he had wished to devise all his real estate, he would have said, "all that I shall die possessed of." Pond V. Bergh, 10 Paige 140. A will devising "all my real estate and personal property of which I am now possessed," and containing no residuary clause, passes the title to after-acquired property, notwithstanding the use of the word "now." Hodgkins v. Hodgkins, 123 App. Div. 10, 108 N. Y. Supp. 173, distinguish- ing Quinn v. Hardenbrook, 54 N. Y. 83. A devise for life with a provision that no part of the property shall be liable for the devisee's debts, creates no trust, but only a life estate; and the provision about debts is ineffectual. Wood V. Ward, 76 App. Div. 567, 78 N. Y. Supp. 544. An absolute devise to-specified persons is cut down as to the share of one, by a direction in the clause next succeeding, that his share be invested for his benefit for life, and for the benefit of his wife and issue after his death. Mee r. Gordon, 187 N. Y. 400, 80 N. E. 353, rev'g 104 App. Div. 520, 93 N. Y.-Supp. 675. 354 PRACTICAL REAL ESTATE LAW. An absolute gift to specific persons is not cut down by a sub- sequent direction for division among the survivors only, in case of the death of either before the entire estate shall be divided. Matter of Wiley, 188 N. Y. 579, rev'g 111 App. Div. 590, 97 N. Y. Supp. 1017. A devise to a son of a one-fifth interest, in trust for his wife. Held to convey an absolute fee to the wife, because it was a mere passive trust, and under former Real Property Law, § 73, no estate vested in the trustee. Matter of Gaiwne, 82 App. Div. 374, 81 N. Y. Supp. 861, aff'd 176 N. Y. 697. A devise in trust for a son until he reaches thirty-five (with clauses which make it valid), and if he dies before that time to his issue, goes absolutely to the issue of the son, when he dies under thirty-five, and not to the trustees. Sabbaton v. Sabbaton, 76 App. Div. 216, 78 N. Y. Supp. 502. A devise of land held adversely to the devisor, is void; but it descends to his heirs. Smith V. Van Dursen, 15 Johns. 343. An executory devise, dependent uppn the exercise of an ab- solute right of disposition by a primary devise, is valid. Leggett V. Firth, 53 Hun 152, 6 N. Y. Supp. 158. aff'd 132 N. Y. 7, 29 N, E. 950. Where a particular estate is carved out, with a gift over to the children of the person taking that interest, such gift embraces not only the objects living at the death of the testator, but also all who may come into existence before the period of distribu- tion arrives. Marks v. Halligan. 61 App. Div. 179, 70 N. Y. Supp. 444. A devise of a part of a tract of land to one person, followed by a devise of the whole tract to another, construed to mean that the later devise covered only that portion of the tract undis- posed of by the earlier devise. Henderson i. Merritt, 10 App. Div. 307, 4] N. Y. Supp. 886. DEVISE. 355 A devise of a house and appurtenances, held to carry the bam and eighteen acres of land used in connection therewith. Jackson v. White, 8 Johns. 59. A DEVISE OF IsriNE ACRES OF LAND, BEING ONE-HALF OF AN EIOHTEEN- ACEE TRACT OWNED BY THE TESTATOR AND ANOTHER AS TENANTS IN COM- MON'j is a devise of all the testator's interest in the tract. A devise of real estate, subject to giving a daughter a home as long as she desires it, construed as a personal liability only. Glatner v. Glatner, -149 App. Div. 89, 133 N. Y. Supp. 872. A devise to three sons named, one house to each, without de- tails, and the houses varying in value, is valid. The sons do not take as tenants in common, but are entitled to elect, in the order in which they are named in the will, as to the house which each will take. Matter of Turner, 206 N. Y. 93, 99 N. E. 187. A devise of one hundred- acres of land to the testator's daughter, out of certain pine woods, "where she pleases to take the same." — The daughter made no election of the land in her lifetime. Held that forty years after her death, the right to take the land was gone from her heirs. Jackson v. Van Buren, 13 Johns. 525. The term "inherit" in a will, will be held applicable to lands devised or conveyed by a parent or ancestor, to a child or de- scendant. De Kay v. Irving, 5 Denio 646. The use of the word jointly, may mean merely as tenants in common. Matter of Haddiek, 170 App. Div, 26. 155 N. Y. Supp. 630. A devise framed to prevent marriage to a particular person, is valid and enforcible. Matter of Seaman, 218 N. Y. 77, 112 N. E. 576. A devise stating that testator's real estate will pass to his wife by law (when not true), operates to devise it to her. Neil v. Neil 96 Misc. 355. 159 N Y. Supp. 945. aff'd 184 App. Div. 894. 170 N. Y. Supi>. 1099. 356 PRACTICAL REAL ESTATE LAW. Devise to one absolutely, and if anything left at his death, over to some one else. — The first devisee has power to will the property. Matter of Ithaca Trust Co., 176 App. Div. 40, 162 N. Y. Supp. 355, rev'd 220 N. Y. 437. Devise to charitable, religious etc., associations. Decedent Estate Law (L. 1909, ch. 18.), § 17, construed in Decker v. Vree- land, 220 N. T. 326, 115 N. E. 989. A devise of all right, title and interest in- lands of which the testator, at the time of making his will, owned only a one-half interest, but of which he owned aU at the time of his death, passed the whole title. CJarley v. Harper, 219 N. Y. 295, 114 N. E. 351. The words "his heirs and assigns forever," add nothing to the quality of the estate. Tilhnan v. Ogren, 99 Misc. 539, 166 N. Y. Supp. 39. A devise to a person and to her heirs, means only a devise to her heirs in case she dies before the testatrix. 'Matter of Olds, 100 Misc. 388, 166 N. Y. Supp. 713. The word marriage in a will means, ordinarily, marriage at the time of the death of the testator. To two named daughters and their children. — The word children is a word of purchase and not of limitation (as the word issue would have been), and the grandchildren take. A devise of certain real estate, or of all right, title and interest therein, when the testator was only a mortgagee, passes the mortgage. Weed V. Hoge, 85 Conn. 490, 83 A. 636. N. Y. L. J. (editorial), July 30, 1912. 7. To corporation. United States incapable of taking by devise. — ^A testator may devise his lands "to every person capable by law of holding real estate; but no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by DEVISE. 357 statute, to take by devise," 2 R. S., 57, § 3. Under this, the United States is incapable of taking land by devise. Matter, of Fox's Will, 52 N. Y. 530, aff'd 94 U. S. 315. In re Merriam, 136 N. Y. 58, 32 N. E. 621. A devise to a corporation to be incorporated, is illegal and void as suspending the absolute power of alienation for an abso- lute period of time. Booth V. Baptist Church of Christ, 126 N. Y. 215, 236, 28 N. E. 238. But a devise to a chalitable corporation, to be created after the death of the testator, was upheld in St. John v. Andrews In- stitute, 191 N. Y. 254, 83 N. E. 981, writ of error, dis. 214 U. S. 19. A devise to a corporation to be formed after the death of the testator, is valid, if it is provided that the corporation be formed within two designated lives in being at the execution of the will. St. John V. Andrews Institute, 191 N. Y. 254, 83 N. E. 981, mod. 117 App. DiT.'698, 102 N. Y. Supp. 808. Under L. 1848, ch. 319. — A devise to a charitable, benevolent, scientific, or missionary society formed under L. 1848, ch. 319, in a will made within two months of the testator's death, is absolutely void. See § 6 of said act (which was not repealed byL. 1860, ch: 360). Matter of Cooney, 112 App. Div. 659, 98 N. Y. Supp. 676. Kerr v. Dougherty, 79 N. Y. 327. Stevenson v. Short, 92 N. Y. 433 ; ov6rr.uling Lefevre v. Lef evre, 59 N. Y. 434, 446. In fact, this provision has been specifically continued in force by L. 1903, ch. 623. Pearson v. CJollins, 113 App. Div. 657, 99 N. Y. Supp. 932, app. dis. 187 N. Y. 530. The main portion of L. 1848, ch. 319, was repealed by the former Membership' Corporations Law (L. 1895, ch. 559) ; but § 6 has never been repealed. (Now Dec. Est. Law, § 19 and mem- bership Corp. L., § 19.) When a corporation is authorized to take property by devise or bequest, "subject to all the provisions of law relating to de- vises and bequests by last will and testament," or "subject to 358 PRACTICAL REAL ESTATE LAW. the provisions of law relating to bequests and devises to religious societies," the limitation imposed by L. 1848, ch. 319, § 6 applies; and a devise or bequest to such a corporation is invalid, unless the will is executed over two months before the testator 's death, whether the corporation was formed under that act or not. People's Trust Co. v. Smith, 82 Hun 494, 31 N. Y. Supp. 519, aff'd 147 N. Y. 693. Kerr v. Dougherty, 79 N. Y. 327. Stephenson v. Short, 92 N. Y. 433. Under L. 1860, ch. 360. — ^A testator. having a husband, wife, child or parent, cannot bequeath or devise over one-half of his estate, after the payment of his debts, to charitable corporations. L. 1860, ch. 360, in effect April 13, 1860. Now Decedent Estate Law (L. 1909, ch. 18, § 17). A devise is not void under L. 1860, ch. 360, unless the husband, wife, child or parent survive the testator; as the will takes ef- fect, not at the date of its execution, but at the death of the testa- tor. St. John V. Andrews Institute, 117 App. Div. 698, 102 N. Y, Supp. 808, mod. by 191 N. Y. 254, 83 N. E. 981, writ of error dis. 214 U. S. 19. The advantage of the prohibition in L. 1860, ch. 360, to the effect that no person having a wife or husband, child or parent, shall devise or bequeath more than one-half of his estate to char- itable corporations, is not confined to the relatives mentioned in the statute ; but may be insisted upon by anyone deriving a bene- fit therefrom. This act does not apply to a deed of trust, but only affects testamentary dispositions. Robb V. Wash. & Jeff. College, 185 N. Y. 485, 78 N. E. 350. A devise in trust to sell and divide the proceeds, giving one share to the trustees of a specified fund of a hospital, creates no trust ; but is an absolute gift to the hospital. Johnston v. Hughes, 187 N. Y. 446, 80 N. E. 373. Under Decedent Estate Law, § 17. — A devise to a trustee for a charitable institution, does not offend against Decedent Estate Law (L. 1909, ch. 18), § 17. Decker r. Vreela'nd, 170 App. Div. 234, 156 N. Y. Supp. 442. rev'd 220 N. Y. 326. DEVISE. 359 The rules for the application of Decedent Estate Law (L. 1909, ch. 18), § 17, prescribed.- Matter of Brooklyn Trust Co., 92 Misc. 695, 157 N. Y. iSupp. 671. mod. 179 App. Div. 262. A devise to a charitable institution is not void, under Decedent Estate Law (L. 1909, ch. 18), §17, as to a grandchild. Matter of Tone, 186 App. Dlv. 361, 563, 174 N. Y. Supp. 391. Corporation must be authorized to take. — No Devise to, or in trust for, a corporation, is valid either at law or in equity, un- less such corporation is expressly authorized by its charter, or some other statutory provision, to take by devise. Theological Seminary of Auburn v. Childs, 4 Paige 419, 4S3. A devise to a corporation, in excess of what it is allowed by its charter to take, vests good title to an amount equal to what it can take; and a defeasible title to the balance. McDonald v. McDonald, 71 App. Div. 116, 75 N. Y. Supp. 674. A devise to one corporation as trustee for another corpora- tion will not be sustained as a trust, in the absence of authoriza- tion for such acts in the charters of the corporations, and the statutes applicable to them; but it will be sustained as an ab- solute gift. A devise to a corporation for one of its chartered purposes, is not a trust, but only a benefaction. Matter of Griffin, 167 N. Y. 71, 60 N. E. 284, rev'g 45 App. Div. 102, 61 N. Y. Supp. 639. A devise or bequest to an unincorporated association, is void. Matter of Collier, 100 Misc. 741. 8. Word death. Words of survivorship and gifts over on the death of the primary beneficiary, are construed, unless a contrary intention appears, as relating to the death of the testator. Nelson v. Russell, 135 N. Y. 137, 141, 31 N. E. 1008. The rule that a death referred to, is one during the lifetime of the testator (Matter of N. Y. L. & W. E. Co., 105 N. Y. 89, 11 360 PRACTICAL REAL ESTATE LAW. N. E.-492), has no application where the first devisee takes a life estate. It only applies when the prior gift is unrestricted, Fowler v. IngersoU, 127 N. Y. 472, 478, 28 N. E. 471. Matter of Baer, 147 N. Y. 348, 41 N. E. 702. Lyons v. Ostrander, 167 N. Y. 135, 60 N. E. 334. Galway v. Bryce, 10 Misc. 255, 30 N. Y. Supp. 985. Mullarky v. Sullivan, 136 N. Y. 227, 231, 32 N. E. 762. Matter of Denton, 137 N. Y. 428, 33 N. E. 482. In case of a devise to one, with devise over in case of his death without issue, the devise over refers to a death in the life- time of the testator, even when a prior life estate intervenes. Smith V. Hull, 97 App. Div. 228, 89 N. Y. Supp. 854, aflF'd 184 K. Y. 534. Searles v. Brace, 19 Abb. N. O. 10. Miller v. McBlain, 98 N. Y. 517. A devise to one with devise over upon his death without issue, taken alone, means his death in the lifetime of the testator. But if the original devise contains this clause: "subject to the pro- visions contained herein," the word death will be held to mean death at any time, on the ground that otherwise the clause quoted above would be meaningless. Ohapman v. Moulton, 8 App. Div. 64, 40 N. Y. Supp. 408. Upon a gift of a life estate to a husband, remainder to his is- sue, and if he dies without issue, to others, the latter clause is not limited to a death during the life of the testator, but refers to his death whenever it occurs. Matter of Gordon, 82 App. Div. 439, 81 N. Y. Supp. 605. The words "death without issue aJive," construed in Matter of N. Y. L. & W. R. Co., 105 N. Y. 89, 11 N. E. 492. Matter of Cramer, 170 N. Y. 271, 63 N. E. 279. Nellis V. Nellis. 99 N. Y. 505, 3 N. E. 59. Death in a will construed to refer to a death at any time, in view of the great disparity in age between the testator and the devisees. Matter of Cramer, 59 App. Div. 541, 69 N. Y. Supp. 299, aff'd, 170 N. Y. 271, 63 N. E. 279. Death without issue in a devise over in a will, refers to a death during the life of the testator. Smith v. Hull, 97 App. Div. 228, 89 N. Y. Supp. 854, aff'd 184 N. Y. 534, DEVISE. 361 "Where the devise or bequest over to third persons is not dependent upon the event of death simply, but upon death with- out issue or without children, the death referred to is death in the lifetime of the testator." Washbon v. C!ope, 144 N. Y. 287, 297, 39 N. E. 388. So also without any. intervening life estate j particularly when the parties have adopted this construction for many years. When a devise over is dependent upon death without issue, the death referred to is death in lifetime of the testator. Erwin v. Waterbury, 188 App. Dlv. 569. (Notes of Cases on Wills Containing Devises in Case of Death.) I. Kelly V. KeUy, 61 N. Y. 47. Devise to the two children of testator of all real estate share and share alike; direction to executors to rent out by the year and not longer, house and lot on State street (in Albany) and apply the rent toward the payment of debts and support of children. "4. In case of the death of either of my said children I de- vise my whole estate to the survivor, and in case of the death of both, I devise lall my property, or what may then be left, to James and Michael Kelly, sons of my brother Bernard of New York, or the whole to the survivor of them. ' ' "6. It is my desire that my .property might not be sold or mortgaged until my youngest child attain the age of twenty-one years." Both children of testator survived him and died under age. Plaintiff claimed, as heir at law of the survivor of testator's two children, half the estate, James and Michael Kelly claimed the whole as remaindermen under the will. Judgment for plaintiff, holding "death" meant death before testator, and at his death the fee was vested in the two children. (Commission of appeals, Reynolds, C.) II. Buel v. Southwick, 70 N. Y. 581. Devise to Charles, the son of testator "subject to the condi- tions and contingencies hereinafter mentioned," that is to say, 362 PRACTICAL REAL ESTATE LAW. ' * that the gift and devise to each is made and given to each, and his, her, or their direct lineal descendants, should he, she, or they have any, in fee simple absolutely; but in the event that either of the said Charles" (or others), "shall die leaving no children or descendants of children, then and in such case I hereby give, devise, and bequeath the said several gifts, devises, and bequests which belong to him, her or them, to the children of the sur- vivors or survivor of them, the said Charles (and others), equally," etc. Held that Charles took a "contingent estate in fee" (meaning a base or terminable fee), which was liable to be reduced to a life estate in case of his decease without children or descendents (which event happened). Decision probably rested on the force of the words above underlined. III. Nellis V. Nellis, 99 N. Y. 505, 3 N. E. 59. Like Buel v. Southwick, supra. IV. Quackentaos v. Kingsland, 102 N. Y. 128, 6 N. E. 121. Devise to son D. K., "and to his heirs; but in case my son Daniel should die without lawful issue, I give and bequeath it to my remaining children." Held that D. K. took fee simple absolute, as he survived testa- tor. V. Van Derzee v. Slingerland, 103 N. Y. 47, 8 N. E. 247. Devise of all real estate to son Cornelius, ' ' subject to the pro- viso hereinafter contained," followed by legacies, etc., (prob- ably charged on real estate), and by following clauses. "10. In conclusion my will is that if my son Cornelius dies without issue, that then the estate herein devised to him shall go to my grandchildren hereinafter named: and in case my son Cornelius should die before the provisions of this will become an act, the devisees last named shall perform and fulfill all the conditions required of my son Cornelius to the legatees named in this my will." Held that the words "if my son Cornelius dies without issue" referred to the event of his death before that of the testator and^ so, he, having survived the testator, took a fee. DEVISE. 363 VI. Matter of New York L. & W. R. Co., 105 N. Y. 89, 11 N. E. 492. Devise to daughter of testatrix, Minnie, without words of in- heritance, but subject to charge of legacies of $1600. "3.1 direct that in case my daughter Minnie should die with- out issue, that my real and personal property should be pos- sessed and enjoyed by my husband, Reuben P. Wisner, and my sister, Delia Fisk, during their natural lives, and after their death be divided equally between my brothers, Henry C. Fisk, John M. Fisk, Frederick D. Fisk, and Thomas J. Fisk, or their representatives, share and share alike. The devise over to my husband, sister and brothers to depend upon the contingency of my daughter Minnie dying without issue. ' ' Held that Minnie took a base fee terminable by her death without issue at any time. This upon the grounds: 1. Absence of words of inheritance in devise to Minnie. 2. Minnie was about six years old at the time of the death of testatrix. 3. The concluding clause above quoted. VII. Fowler v. Ingersoll, 127 N. Y. 472, 28 N. E. 471. In principle like Mullarky v. Sullivan and Matter of Denton, with the additional feature, that, remainders having been de- vised upon death, and "death" not being limited to death in the lifetime of the testatrix, there was an illegal suspension of the power of alienation, and so the will was void. VIII. Mead v. Maben , 31 N. Y. 255, 30 N. E. 98. Equitable conversion and division among the seven children ®f testator; if Diademia (daughter) die intestate; all the share given her to be divided among the other children; if Jonathan (son) die intestate then the executors, if they think proper, may give to any child of Jonathan the whole or any part of the share remaining given to him, otherwise such remaining share be equally divided between the other children if any of the chil- dren except Diademia die without leaving heirs of the body, then the share of the estate given to such deceased child shall go equally to the other children, etc. Abigail (daughter), died childless. Her husband claimed her share (as administrator). 364 PRACTICAL REAL ESTATE LAW. Held that the will meant by "if administrator shall die" etc., death at any time, and so Abagail's share was not absolutely i^ested. This upon language in the will, especially "shall die without leaving her will. ' ' Opinion by Gray, J. IX. Nelson v. Russell, 135 N. Y. 137, 31 N. E. 1008. Devise of 356 and 358 C. Street to daughters, Catherine and Bridget for their lives, and, after their deaths, 356 to James, son of Bridget, and 358 to James and Ellen Barry, children of de- ceased son, ' ' the child or children of a deceased child taking the share which his, or her or their parent would have taken if living. ' ' Held that remainder in 358 C. Street was absolutely vested in James and Ellen Barry and so they with Bridget Russell could, after the death of Catherine Barry, convey a good title. Opinion of Andrews, J. X. Mullarky v. Sullivan, 136 N. Y. 227, 32 N. E. 762. Equitable conversion. Residuary estate given to executors in trust to hold in equal shares and apply income to the use of such of his children as should survive the testator "during the life of each of them severally, and upon the death of each of my said children, to pay over the capital of the share of such child so dying to his or her descendents, . . . and if any of my said children should die without leaving any descendent, then to pay over the capital of such child's share to his or her surviving brothers and sisters." Held that last quoted clause did not refer to deaths in lifetime of testator. (I should say the language obviously refers only to shares of children surviving testator), O'Brien, J. says that it is only in the case of an absolute devise or bequest to one and in case of his death to another, that words of survivorship refer to the testator's death, and the rule has no application to a case where the first devisee or legatee takes a life estate. XI. Matter of Denton, 137 N. Y. 428, 33 N. E. 482. Denton by will created life estates in different parts of his property and gave the residue to his four children ; ' ' and in case of the death of either of them leaving issue before either of the DEVISE. 365 different parts thereof as hereinbefore mentioned can be divided, then such issue to take the share or part the parent would have been entitled to if living; if without issue, then the survivors to take." One son died without issue before the termination of the life estates. Held that his widow, to whom he gave by will his en- tire estate, took no interest in the property subject to said life estates. Maynard, J., said: "The appellant's counsel invokes the rule of construction that when there is a bequest to one person absolutely, and, in case of his death without issue to an- other, the contingency referred to is a death in the lifetime of the testator. But this rule has only a limited operation, and cannot be extended to a case where a point of time is mentioned other than the death of the testator, to which the contingency can be referred, or to a case where a life estate intervenes, or where the context of the will contains language evincing a con- trary intent. ' ' XII. Stokes V. Weston, 142 N. Y. 433, 37 N. E. 515. Devise to wife for life; remainder to two sons and daughters of testator, "but in case of the death of my sons, Alfred and Charles, or either of them, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren," the chil- dren of the daughter. Held that the sons took absolutely vested remainders, the deaths referred to being deaths in the lifetime of the testator. Bartlet, J., gives opinion quoting liberally from Matter of New York L. & W. R. Co., 105 N. Y. 89, 92, 11 N. E. 492. XIII, Benson v. Corbin, 145 N. Y. 351, 40 N. E. 11. Devise to son and daughter of house in Brooklyn, and house at Montauk, subject to the life occupancy of their mother. And also lands in Easthampton, Amangansett, Napeag and Montauk, and also other lands, subject to the the dower right of their mother: "It is my will that in case of the death of both my children and their issue, ... is hereby given, devised and bequeathed to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church." The question whether the 366 PEACTICAL EEAL ESTATE LAW. children had title in fee simple absolute to lands in Montauk, which evidently were not included in the devise of a life estate to the wife, but were subject to her dower. Held that there was a straight devise to the children and that the words of survivorship related only to death in the lifetime of the testator. XIV. Matter of Baer, 147 N. Y. 348, 41 N. E. 702. Trust for life of daughter Emeline and on her death to convey to her issue; in case of her death without issue the trustees were to apply the rents, etc., to the use of her sister Matilda during her life and upon her death to convey the remainder to the children and lawful heirs of Harmon Hendricks, the deceased brother of testatrix, per stirpes. Emeline died intestate and without issue. Matilda survived her. Harmon Hendricks left him surviving ten children who were alive at the death of testa- trix, but all died before Emeline. The question was whether re- mainders were vested in them, so that the wills of those of them who died testate would operate on such remainders. Held, that they were not; that the vesting of the remainders was postponed until the time for distribution arrived, then to vest in such persons as answered to the description of heirs of Harmon Hendricks. The rule referring to death in lifetime of testator has no application; passage above quoted from opinion in Matter of Denton, quoted. XV. Lyons v. Ostrander, 167 N. Y. 135, 60 N. E. 334. Devise to trustees to receive rents, etc., and apply to use of Jacob Weeks Cornwall during his lifetime; on his death, devise to his wife and children, ' ' the issue of such as may have died to take the share to which his, her or their parents would, if living, have been entitled. ' ' The question was whether the will of one of the children operated on her remainder, she dying before the termination of the trust. Held, that her remainder was divested by her death, and vested in her issue and so did not pass by her will. Cites cases MuUarky v. Sullivan, Fowler v. IngersoU, Matter of Denton and Matter of Baer. "Such as may have died" did not mean merely those who died in lifetime of testator. DEVISE. 367 XVI. Matter of Cramer, 170 N. Y. 271, 63 N. E. 279. Bequest of personalty to two great-granddaughters, "But in case of death of either of said great-grandchildren, Gracie or Myrtie, without heir or heirs I direct that such share of per- sonal property shall go to the survivor of them." Gracie died without issue about a year after the testatrix, being then four- teen years of age. Held, that Gracie took under the will a title defeasible by her death without issue. XVII. Connelly v. O'Brien, 166 N. Y. 406, 60 N. E. 20. Devise "to my wife Eose during her life, and then to such of my children as may then be alive, share and share alike." Held that the word "then" referred to the death of the testator. (If, instead of the word "then" the will had said "at her death" I think the decision would have been different. The testator probably meant "at her death;" although he did not anticipate that such language would disinherit grandchildren whose par- ent should die while his wife's life estate continued.) From the foregoing cases the following rules of construction are deducible, notwithstanding the want of harmony in the cases, hereinafter mentioned: 1. Where there is a devise absolutely to one, and in case of his death, or his death without issue, to another, death in the life- time of the testator is presumptively meant. Kelly V. Kelly, 61 N. Y. 47. Quaekenbos v. Kinglsand, 102 N. Y. 128, 6 N. E. 121. Van Derzee v. Slingerland, 103 N. Y. 47, 8 N. E. 247. Benson v. Corbin, 145 N. Y. 351, 40 N. E. 11. 2. But the foregoing rule does not apply "where a point of time other than the death of the testator is mentioned, to which the contingency can be referred, or to a case where a life estate intervenes or where the language of the will evinces a contrary intent. ' ' Maynard J. in Matter of Denton, 137 N. Y. 428, 33 N. E. 482. O'Brien J. in Matter of Baer, 147 N. Y. 348, 41 N. E. 702. Where a life estate intervenes, generally "a point of time is mentioned, other than the death of the testator, to which the contingency can be referred." Fowler v. Ingersoll, 127 N. Y. 368 PEACTICAL EEAL ESTATE LAW. 472, 28 N. E. 471; MuUarky v. Sullivan, 136 N. Y. 227, 32 N. E. 762; Matter of Denton, 137 N. Y. 428, 33 N. K 482; Matter of Baer, 147 N. Y. 348, 41 N. E. 702; and Lyons v. Ostrander, 167 N. Y. 135, 60 N. E. 334, are cases of this sort; but in Nelson v. Eussell, 135 N. Y. 137, 31 N. E. 1008; Stokes v. Weston, 142 N. Y. 433, 37 N. E. 515; Matter of Tompkins, 154 N. Y. 634, 49 N. E. 135, and Connelly v. O'Brien, 166 N. Y. 406, 60 N. E. 20, the rule first stated was applied, although ' ' a life estate intervened. ' ' I think these cases, or some of them can hardly be reconciled with Fowler v. Ingersoll and the like cases. In the following cases the wills imder consideration were held to contain language evincing the intent of the testator that "death" should not mean death in his lifetime. Buel V. Southwick, 70 N. Y. 581. Nellis V. Nellis, 99 N. Y. 505, 3 N. E. 59. Matter of New York L. & W. R. Co., 105 N. Y. 89, 11 N. E. 492. Mead v. Maiben, 131 N. Y. 255, 30 N. E. 98. Matter of Cramer, 170 N. Y. 271, 63 N. E. 279. But in the third and fifth of these cases, the decisions seem to have been governed by the fact that in each ca.se it was improbable that the primartf devisee should die, leaving issue, in the lifetime of the testa- trix, and not by any specific language in t^e will. The will shows that death at any time was meant as devise over was to the persons who should be living at death of primaiy devisee. Tyndall v. Fleming, 123 App. Biv. 837, 108 N. Y. Supp. 239. Words of survivorship held to refer to death of testator, on consideration of the whole will. Matter of Tienkin, 131 N. Y. 391, 30 N. E. 109. To THE FOEEGOlJSrG MEMOEAKDUM THE CASE OF WaSHBON V. CoPE, ]44 N. Y. 287, 39 N. E. 388, should be added. In the will ther^ considered there was a bequest of $10,000, and a share of the residukry estate to the defervdant. In a separate clause the will directed that, if the said legatee should die without children, i^e portion given to her in the will should be given to the testator's sons, or their heirs. It was held that this clause referred only to her death in the lifetime of the testator. The decision was in line with Kelhj v. Kelly, 61 N. Y. 47, DEVISE. 369 and the other cases illustrating the rule, the court finding no ground for including it in the exceptions applicahle to Buel v. Southwich, 70 N. Y. 581, and like cases. This case, and some of t^e others hereinbefore mentioned, related only to personal property. But the construction of bequests of personal property is, in respect to the matter under con- sideration, the same as that of devises of real estate. * 9. Use of the word heirs. A devise to the heirs of a living person, means to the heirs apparent at the death of the testator; and the estate vests in them immediately. Children of the living person born after the death of the testator, take nothing. Vannorsdall v. Van Deventer, 51 Barb. 137. A general devise to the heirs of a living person, who is then living, but is not referred to as living, is void for indefiniteness; but a devise to one who is stated in the will to be alive, is a valid disposition in favor of those who would be his heirs in case he should then die. Heard v. Horton. 1-Denlo 165. A devise to a daughter and the heirs of her body forever, with a limitation over to someone else in case the daughter died without issue. — Held, by the court of errors, that a fee tail was attempted to be devised to the daughter, which the statute abolishing entails changed into a fee simple. Grout V. To-wTisend, 3 Denio 336. Under a devise to a man "and the heirs of his body forever," the devisee takes a fee, under the provision of the Revised Statutes declaring entails fee simples. Coe V. DeWitt, 22 Hun 428. A devise to a person for life, and after her death, to her heirs and assigns forever, gives a fee to the first devisee ; or, at least, the use of the word assigns gives her a power to dispose of the remainder. Goetz V. Ballou, 64 Hun 490, 19 N. Y, Supp. 433. • See also NOTE, N. Y. Reports, Bender Annotated Ed., Bk. 32 p. 1071. 370 PRACTICAL REAL ESTATE LAW. A devise to a daughter, "and after her decease, to her lawful heirs," vests the fee in the daughter. Cipperly v. Cipperly, 40 How. Pr. 269. A devise to certain persons or their children or heirs, car- ries title to said persons, if they survive the testator, and not to the children or heirs. Wetmore v. Peck, 66 How. Pr. 54. A devise to A for life, and after her death, to the testator's heirs and to A. 's heirs in fee. — On the death of A., the heirs of both took the property. Bisson y. West Shore R. Co., 143 N. Y. 125, 38 N. E. 104. A devise to sisters and brothers, or their heirs, means to the Uving brothers and sisters, and to the heirs per stirpes, of the deceased ones. Matter of Edwards-, 132 App. Div. 544, 117 N. Y. Supp. 3. * 10. By implicatioa. A devise to one, and if he dies without issue, over, is a devise by implication to the issue, if there is any. Matter of Hoffman, 201 N. Y. 247, 94 N. E. 990, mod. 140 App. Div. 121, 124 N. Y. Supp. 1089. A devise by implication must be clear and must not disinherit an heir. Brown v. Quintard, 177 Is. Y. 75, 69 N. E. 225. A devise of a life estate only, may be implied (although the language gives a fee), by requiring the devisee to pay the taxes, and giving him authority to collect the rents. Matter of Frothingham, 63 Hun 430, 18 N. Y. Supp. 695, aff'd 136 N. Y. 238. A devise in trust for A. until he becomes twenty-one, and if he should die before then, over, is a devise in fee to A. on his becoming twenty-one, although not expressly so stated. Culhane v. Fitzgibbons, 42 Misc. 331, 86 N. Y. Supp. 710. Jarman on Wills (6th ed.), p. 547. •■ See also NOTE, N. Y. Rp*a., Bender Annotated Ed., Bk. 23, p. 624. DEVISE. 371 A devise to testator's son, J., for life, and "if he leaves no legitimate heirs," then to testator's son, D., is, it seems, by im- plication, a devise to the legitimate heirs of J., if any. Held, also, that by "legitimate heirs," were meant legitimate children of J., or their descendants, and not the heirs in general, of J. Heirs must be legitimate, but children may not be so. Prindle v. Beveridge, 7 l^ns. 225i, aff'd 58 N. Y. 592. A devise to a person for life, with power to the life tenant to devise the property to his children if he has any, but if he has none, over to third parties. — Upon the death of the life tenant, intestate, but leaving children, the title vests in them. Smith V. Floyd, 71 Hun 56, 24 N. Y. Supp. 610, aflf'd 140 N. Y. 337, .35 N. E. 606. 11. Lapsed. That part of the residue of which the disposition fails, will not accrue in augmentation of the remaining parts, as a residue of a residue; but devolves as undisposed of. Matter of Hoffman, 201 N. Y. 247, 94 N. E. 990. Booth V. Baptist Church of Christ, 126 N. Y. 215, 28 N. E. 238. Simmons v. Burrell, 8 Misc. 368, 28 N. Y. Supp. 625. A LAPSED DEVISE PASSES INTO THE EESIDTTABT ESTATE^ TTPOlSr THE DEATH OF THE DEVISEE BEFOEE THAT OF THE TESTATOK J and the death of a residuary devisee hefore the testator, creates an intestacy. A devise to the nephews and nieces of the testator's husband, living at the death of the husband, lapses as to those who died after the husband and before the testator, and goes into the residuary. Matter of King, 200 N. Y. 189). 93 N. E. 484, rev'g 135 App. Div. 781, 119 N. Y. Supp. 869. 12. Precatory words. The words "request" and "confidence," in a will, are pre- catory only. Salomon v. Lawrence, 62 Super. (20 J. & S.), 154. A devise to a person, "for the benefit of himself and his fam- 372 PRACTICAL REAL ESTATE LAW. ily> ' ' gives him a fee simple, the words quoted being precatory merely. Holder v. Holder, 40 App. Div. 255, 59 N. Y. Supp. 204. A devise of real estate to executors as joint tenants, with mere precatory words as to its disposition, does not vest in the executors individually; and their individual deeds will not con- vey good title. Forster v. Winfield, 142 N. Y. 327, 37 N. E. Ill, rev'g 3 Misc. 435, 23 N. Y. Supp. 169. 13. Revocation. A devise is not revoked by a contract to sell the land, or the delivery of a deed of it in escrow. At common law it would have been; but not since Revised Statutes. Van Tassel v. Burger, 119 App. Div. 509, 512, 104 N. Y. Supp. 273. A devise is revoked by a sale and conveyance of the land by the testator in his lifetime; but he may provide for the disposi- tion of the proceeds of such a sale, if one is had. Hoffman v. Steubing, 49 Misc. 157, 98 N. Y. Supp. 706. A devise of land, does not pass an interest in mortgages on it, owned by the testator at the time of his death. IMiller v. Miller, 22 Misc. 582, 49 N. Y. Supp. 407. When a testator devises all his real estate, and subsequently sells a portion of it, taking back a purchase money mortgage thereon, the devisee takes no interest in the mortgage; but it goes to the residuary legatee. ^rcXaughton v. iIc•^^augl^ton, 34 N. Y, 201. A devise to four children, revoked by a codicil as to one, vests the title in the other three. Heartt v. Tjvingston. 14 Hun 285. 14. Substitutional. A devise to A. for life, and after his decease to B. or his chil- dren, creates a substitutional devise to the children of B., in the DEVISE. 373 event of his dying during the lifetime of A. Therefore, the in- terest of B. cannot be divested from his ehldren by his will. Lyons v. Ostrander, 167 N. Y. 135, 60 N. E. 334. The words lawful descendants, used in the alternative, in a de- vise of real property, were held to refer to a death during the lifetime of the testator, and to operate as a substituted gift, in case such an event transpired. Matter of Tompkins, 154 N. Y. 634, 49 N. E. 135. A devise to grandchildren, and to the issue of any grandchild who may have died leaving issue, is a substitutional devise to great-grandchildren. staples V. M^ead, 152 App. Div. 745, 749, 137 N. Y. Supp. 847. * 15. Vesting. Upon a devise of residuary estate in trust during the widow's life, with directions to divide at her death, the title does not vest in the remaindermen until the death of the widow. Lese V. Miller, 71 App. Div. 195, 75 N. Y. Supp. 675. Under a limitation over in case of the death of children under twenty-one, the remaindermen must survive the children, in order to take. Knowlton v. Atkins, 56 Hun 408, 10 N. Y. Supp. 77, aff'd 134 N. Y. 313, 31 N. E. 914. A devise to a person, with the provision that if he dies with- out issue, then the property which he died possessed of, or what property he left, should go to another, vests a fee in the first de- visee; because an intention is shown to give him a power of alienation and any further limitation is repugnant to an abso- lute ownership. Jackson v. Bull, 10 Johns. 19. A devise to a daughter for life, with remainder to her chil- dren, creates in said children a vested remainder in fee, which is alienable, descendible and devisable. But this is only where no survivorship is provided for. Byrnes V. Stilwell, 103 N. Y. 453, 9 N. E. 241. • See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 27, p. 984. 374 PEACTICAL REAL ESTATE LAW. A devise in trust for two lives, and "on the death of the sur- vivor," over. — The words "on the death of the survivor," relate to the time of enjoyment, and not to the vesting of the estate; and the remainders vest immediately on the testator's death. Trowbridge v. Coss^ 126 App. Div. 679, 110 N. Y. Supp. 1108 (court divided, three to two), aff'd 195 N. Y. 596. Adverbs of time, such as when, then, after, from, and after, in the devise of a remainder limited upon a life estate, are to be construed merely as relating to the time of enjoyment, and not to the vesting of the interest; and the law favors such a con- struction as will avoid disinheriting a remainderman who dies before the determination of the precedent estates. Ackerman v. Ackerman, 63 App. Div. 370, 71 N. Y. Supp. 780. A devise of a remainder to a person on his reaching twenty- five, is not an illegal suspension; for it vests in interest im- mediately; and possession only is postponed. Neilson v. Brown, 31 Misc. 562, 65 N. Y. Supp. 585. A devise to the testator's brother of the use of laud, until the testator's youngest child becomes of age, then to his own chil- dren, does not suspend the power of alienation, although he left four children. They took a vested interest at once, with en- joyment only postponed. Matter of Bray, 118 App. Div. 533, 102 N. Y. Supp. 989. DISCHARGE OF MORTGAGE. (See Mortgage.) DISPOSE. (See Construction.) DISPOSSESSION. (See Lease.) DISTRIBUTION. (See Personal Property.) DIVORCE. 375 1. In general. 2. Effect on dower. 3. Matrimonial domicil. * DIVORCE. 1. In general. By act of legislature. — Marriage may be dissolved by a direct or special act of the legislature; and such a law does not impair the obligation of a contract. Livingston v. Livingston, 173 N. Y. 377, 66 N. E. 123. Maynard v. Hill, 125 U. S. 190. (See Constitutional Prohibition Art. 1^ § 9.) Foreign laws. — ^A female citizen of the United States married, in France, a citizen of Switzerland then residing in France, and conveyed certain real estate in New York to her husband. Later she obtained a divorce in Switzerland, where the laws provide that, upon divorce, the defendant must reconvey to the plain- tiff, all property received from her. Our laws refuse to rec-' ognize or enforce such foreign laws. Van Oortlandt v. de Graff enried, 147 App. Div. 825, 132 N. Y. Supp. 1107, aff'd 204 N. Y. 667. Granted by a foreign state. — "Divorce valid and effectual by the laws of the state where obtained, is valid and effectual in all other states. ' ' Cheever v. Wilson, 9 Wallace 108. Though the United States courts have so declared, yet the New York courts have declared that a foreign divorce, against a resident only constructively served, and not appearing in the action, is void. Davis V. Pavis, 2 Misc. 549, 22 N. Y. Supp. 191. ' ' Under the laws of this state we permit a husband or wife, as the case may be, to obtain a valid divorce by service of the sum- mons by publication upon the defendant residing in another jurisdiction, yet we do not recognize as valid a judgment of divorce obtained by a husband or wife in a sister state, unless * See also Fiero on Special Actions (3d ed.), and Supplement, 1919. 376 PRACTICAL REAL ESTATE LAW. the defendant has been personally served with process in that jurisdiction, or has appeared and submitted himself to the juris- diction of that court." Hamilton v. Hamilton, 26 Misc. 336, 56 N. Y. Supp. 122. A divorce in a foreign state, without personal service on, or appearance by, the defendant, is void here, even though the parties are nonresidents of this state, and acqiesce therein. Adultery does not bar dower without a conviction by a court. Rundle v. Van Inwegen, 9 Civ. Proc. E. 328. A decree of divorce granted in a sister state, against a non- resident defendant who was not served with process within said state, nor appeared in the action, is a nullity. O'Dea V. O'Dea, 101 N. Y. 23, 4 N. E. 110. People V. Baker, 76 N. Y. 78. A divorce obtained in a foreign state court, by a plaintiff who leaves this state and acquires a domicil in the foreign state, is in- valid here even though personal service is made on the defend- ant in this state. Such service gives the foreign court no juris- ■ diction over the defendant. Viaoher v. Vischer, 12 Barb. 640. Borden v. Fitch, 15 Johns. 121. Holmes v. Holmes, 4 Lans. 388. A divorce obtained in a foreign state on service by publica- tion against a resident of this state is valid if rendered on the statutory ground, and the parties were married, and the of- fense committed, in the foreign state. Matter of Morrisson, 52 Hun 102, 5 N. Y. iSoipp. 90, aff'd 117 N. Y. 638. A divorce valid in a foreign state where acquired, where the court had jurisdiction of both parties, is valid here upon a gen- eral principle of common law, even though obtained on a ground for which divorce is not allowed here. (This was decided on a motion to vacate an order of arrest of the defendant.) Strauss v. Strauss, 122 App. Div. 729, 107 N. Y. Supp. 842. A DIVOKCED WOMAN MAY RELEASE HEE DOWER TO THE DIVORCED MAN, under former Real Property Law, § 186, and Real Property Law, % 206. DIVORCE. 377 The language of the section, a divorce granted by any court of com- petent jurisdiction, means any court of any state having jurisdiction. Jurisdiction of nonresidents. — Our courts have jurisdiction to grant a divorce to nonresident parties who were married here. Becker v. Becker, 58 App. Div. 374,, 69 N. Y. Supp. 75. An appearance by attorney in a divorce action here by a non- resident defendant who has not been served with process, con- fers jurisdiction on the court to award a decree. Freeman v. Freeman, 57 M'ise. 40O, 109, N. Y. Supp. 705, 126 App. Div. 601, 110 N. Y. Supp. 686. Interlocutory judgment. — Since Sept. 1, 1902, by L. 1901, ch. 364, final judgment in a divorce action cannot be entered until after the expiration of three months from the filing of the de- cision of the court, or the report of the referee. Code of Civil Procedure, § 1774. 2. Effect on dower. A divorce obtained in another state, for a cause not recognized by the laws of New York as sufficient ground for an absolute divorce, does not deprive the wife of her dower in real estate owned by her husband prior to the divorce, even though she is the plaintiff. Van Cleaf v. Burns, 118 N. Y. 549, 556, 23 N. E. 881, 133 N. Y. 540, 30 N. E. 661. But a decree of absolute divorce obtained by a wife in a for- eign state, no matter upon what ground, or how invalid it may be, is competent and conclusive evidence against her in an ac- tion brought by her for dower in the land of the man, which he acquired subsequent to the divorce. She will not be heard to question the validity of a decree which she herself obtained. Sfcarbuck v. Sta'rbuck, 173 N. Y. 503, 66 N. E. 193. Adultery does not bar dower, without conviction by a court. Rundle v. Van luwegen, 9 Civ. Proc. R. 328. Real estate owned prior to divorce. — ^A divorce granted a wife on the ground of adultery of the husband, does not deprive the 378 PRACTICAL REAL ESTATE LAW. wife of her dower in his real estate owned prior to the divorce. But at common law, a divorce dissolved the marriage ab initio, and the dower right ceased in all real estate. Wait V. Wait, 4 N. Y. 95, rev'g 4 Barb. 192. Real estate acquired after divorce. — But an absolute divorce obtained by a wife for the fault of the husband, cuts off her dower from lands acquired after the divorce, because the mar- riage no longer exists. Otherwise, however, as to lands of which the husband was seized during coverture and before the di- vorce. Kade v. Lauber, 16 Abb. Pr. N. S. 288. A decree in favor of the wife has no effect on her dower right in land owned by the hicsband at the time of the decree; but she will have no right in land acquired by him subsequently. 'If the decree is in favor of the husband, and the wife was personally served within the state, it bars her dower in all land ever owned by the husband, then and thereafter. Wife party to invalid divorce. — A wife is equitably estopped from claiming dower, where she was a party to an invalid di- vorce, and herself married again. Kantor v. Oohn, 98 Misc. 355, 164 N. Y. Supp. 383 aff'd 181 App. Div. 400, 168 N. Y. Supp. 846. This was a rabbinical divorce, called a " get." 3. Matrimonial domicil. The divorce status is governed by the law of the matrimonial domicil of the parties. In Massachusetts Turkish laws avoid- ing marriage by change of religion, were upheld as to Turkish subjects. Kapigian v. Minassian, 212 Mass. 412, 99 N. E. 264. A divorce in a foreign country, valid there, when the parties lived there and were married there, is valid everywhere; whether the ground be one recognized here or not, Leshinsky v. Leshinsky, 5 Misc. 495, 25 N. Y. Supp. 841. Divorce, as well as marriage, is determined by the law of the country of the domicil of the parties. N. Y. L. J. (editorial), Sept. 16, 1912. DIVORCE. 379 A rabbinical divorce in Russia, is good here as to Russian sub- jects only. Saperstone v. Saperstone, 73 Misc. 631, 131 N. Y. Supp. 241. A foreign divorce is good upon substituted service here, when the matrimonial domieil was there, but the wife left her hus- band and came to New York. Benham v. Benham, 69 Misc. 442, 125 N. Y. Supp. 923. In determining the validity of a foreign decree of divorce, obtained without personal service on, or appearance by, the de- fendant, three elements are to be considered: (1) the domieil of the plaintiff; (2) the domciil of the defendant; and (3) the matrimonial domieil. If the plaintiff only is domiciled in the state where the decree is granted, then it will not be recognized here. If the plaintiff and defendant are both domiciled there, the decree is valid, even if the defendant may be actually present here. The matrimonial domieil means the last joint domieil of the parties before separation; and a decree valid there, is valid everywhere, without personal service on or appearance by the defendant here. Callahan v. Callahan. 65 Misc. 172, 121 N. Y. Supp. 39. Atherton v. Atherton, 181 U. S. 155. Atherton v. Atherton, 181 U. S. 155, is not overruled by Had- dock V. Haddock, 201 U. S. 562; but they are distinguishable, the latter holding that a foreign decree dissolving a marriage, obtained without personal service on or appearance by, the de- fendant, is only valid if obtained in the state of the matrimonial domieil. Post V. Post, 149 App. Div. 452, 133 N. Y. Supp. 1057, aff'd 210 N. Y. 607, 104 N. E. 1139. A divorce obtained in a foreign state by a husband who leaves his wife unprovided for, with only constructive service on the wife, is invalid here. In such a case the wife's domieil does not follow that of her husband. . Olmstead v. Olmstead, 190 N. Y. 458, 83 N. E. 569, aflf'd 216 U. S. 386. Halter v. Van Camp, 64 Misc. 366, 118 N. Y. Supp. 545.. Haddock v. Haddock, 201 U. S. 562. Ackerman v. Ackerman, 200 N. Y. 72, 93 N. E. 192. 380 PRACTICAL REAL ESTATE LAW. A Dakota divorce is good here, where the plaintiff was domi- ciled there, and the defendant appeared in the action, under the full faith and credit clause of the United States Constitution, Art. 4, § 1. Rupp V. Rupp, 156 App. Div. 389, 141 N. Y. Supp. 484. A divorce in a foreign state against a defendant resident of that state, is valid everywhere, although he was not in the state at the time, and was served by substituted process. Matter of Denick, 92 Hun 161, 36 N. Y. Supp. 518. Divorce can be granted without personal service, in the state of the last matrimonial domicil, which must be recognized every- where. Schenker v. Schenker, 181 App. Div. 621, 169 N. Y. Supp. 35. DOMICIL. (See Construction.) DOMICIL OF DECEDENT. (See Surrogate's Court.) DOWER. 381 * DOWER. 1. In genaeral. 2. Admeasurement. 3. Assignability. 4. Attaches to what. 5. When barred. 6. On condemnation. 7. Effect of divorce upon. 8. Election. 9. On foreclosure. 10. Jfature of inchoate dower. 11. Release. 12. Value, how fixed. 1. In general. The legal meaning is: "That portion of lands or tenements which the wife hath for the term of her life of the lands or tene- ments of her husband after his decease, for the sustenance of herself and the nurture and education of her children. ' ' Matter of Martens, 106 App. Div. 50, 94 N. Y. Supp. 297. What acts wiU not prejudice. — I R. S., 742, § 16 provides that "no act, deed or conveyance, executed or performed by the hus- band . . . and no judgment or decree confessed by or recov- ered against him . . . shall prejudice the right of his wife to her dower ... or preclude her from the recovery thereof." A wife's right of dower in" mortgaged premises, pur- chase money or otherwise, fully stated and decided. Wheeler v. Morris, 15 Super. (2 Bosw.), 524. Where an owner of real estate contracts to sell it, his wife not joining in the contract, and she subsequently refuses to execute the deed, such refusal not being attributable to the husband, specific performance will not be decreed. Eoos V. Lockwood, 59 Hun 181, aff'd 41 St. R. 945, 13 N. Y. Supp. 128. •See also Fiero on Special Actions (3d ed.), and Supplement, 1919; Heaton's Surrogates' Courts (3d ed.); Schouler on Wills (5th ed.), NOTE, N. Y. Kpts., Bender Annotated Ed. Bk. 2, p. 312, Bk. 11, p. 672, Bk. 18, p. 244, Bk. 20, p. 448, Bk. .30, p. 298. 382 PRACTICAL REAL ESTATE LAW. Dower is not presumed. — The fact that a prior grantor had a wife in 1899, raises no presumption that he had one two years be- fore that time, at which time he conveyed; and a subsequent ven- dee is not entitled to refuse title on the ground that the wife did not join. Russell V. Wales, 119 App. Div. 536, 104 N. Y. Supp. 143. A dower right in lands cannot be sold by the surrogate in pro- ceedings to sell lands to pay debts of a decedent. 2 R. S. (2d ed.), p. 44, § 31. Lawrence v. Miller, 2 N. Y. 245. See also Code of Civil Procedure, § 2800, and after Sept. 1, 1914, § 2717. Releases op easements and resteictions.- — Upon obtaining re- leases of easements in streets in front of other property, and releases of restrictions, the wives of the owners need not join; because such ease- ments are only appurtenant to tfie lots. The sufficiency of land remaining in the husband's estate to satisfy all claim of dower, is no answer to an action for dower out of the lands of the husband's alienee. Richardson v. Harms, 11 Misc. 254, 32 N. Y. Supp. 808. "Where an actual partition of the premises can be made, it is not material that the wife, who has only an inchoate right of dower in her husband's undivided interest therein, should be made a party; as her dower will attach upon that part of the premises which shall be set off to him in severalty. ' ' Wilkinson v. Parish, 3 Paige, 653, 658. * 2. Admeasurement. Dower can be set off by giving the widow the fee simple of a vacant lot of ground under Code of Civil Procedure, § 1619. Price V. Price, 41 Hun 486. Partition action. — A widow's dower should be admeasured in a partition action. Ryder v. Kennedy. 166 App. Div. 146, 151 N. Y. Supp. 1036. The purchaser at a sale in an action for admeasurement of * See also NOTE. N. Y, Rpts.. Bender Annotated Ed., Bk. 37, p. 466. DOWER. 383 dower, in which no proof of the complaint is made, will be re- lieved from completing. Dwyer v. Bwyer, 13 Abb. Pr. N. S. 269. A JUDGMENT IN AN ACTION TO ADMEASUHE DOWEE, IS BINDING ON ALL. THE PARTIES THERETO^ even thougJi over one year has elapsed, and no election has been made, and the will contains provisions for the wife in lieu of dower. Lienors are not necessary parties in actions for dower, tinder Code of Civil Procedure, §§ 1597, 1598. 3. Assignability. May be transferred, mortgaged and reached by creditors. — It is well settled that dower is a legal interest, and constitutes prop- erty which is capable in equity of being sold transferred and mortgaged by the doweress; and liable to be reached by her creditors in payment of her debts. Boatiwick v. BeaoK 103 N. Y. 414, 423, 9 N. E. 41. Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324, 330, 24 N. E. 177. May be assigned. — It was formerly held that a widow's right of dower before admeasurement, could not be assigned, leased or mortgaged. Green v. Putnam, 1 Barb. 500; Marvin v. Smith, 46 N. Y. 571, 574. But these cases have been overruled by Payne V. Becker, 87 N. Y. 153, which holds that a widow can assign her unadmeasured dower to a receiver in supplementary proceedings imder order of court; and that the receiver may maintain an ac- tion to admeasure in his own name. Inchoate dowee can be released to a person out of possession, if the husband joins. -~ 4. Attaches to what. Dower does not attach to a vested remainder, expectant upon an estate for life; because the remainderman is not entitled to possession until the life tenant's death. Durando v. Durando, 23 N. Y. 331. .Tackson v. Walters, 86 App. Div. 470, 83 N. Y. Supp. 696. House V. Jackson, 50 N. Y. 161. The following are the only equitable interests in lands to 384 PRACTICAL EEAL ESTATE LAW. which dower attaches: (1) lands purchased by the husband at a sale on execution, when the husband dies before the expiration of the time for redemption, and the lands are subsequently con- veyed to the executors or administrators of the deceased hus- band; (2) lands held by the husband at the time of his death by contract of purchase. Hicks V. Stebbins, 3 Lans. 39. Dower was held to attach to the following equitable estate in lands: an oral agreement to hold lands, which, though invalid, is admitted by the grantee. liUgar V. Lugar, 160 App. Div. 807, 146 N. Y. Supp. 37, by divided court, three to two. A lease for a thousand years is not dowable. It is not a free- hold and not an estate of inheritance, and goes to the adminis- trator. Real Property Law, § 190. Finn v. Sleight, 8 Barb. 401. Dower on dower cannot be granted; for two or more women cannot possess the same land in dower at the same time. Johnson v. Johnson, 46 Misc. 314, 93 N. Y. Supp. 197. Dower does not attach to an instantaneous seizin of the hus- band. Therefore it does not attach to a purchase money mort- gage. So also where the husband is a mere conduit pipe, or in- strument of conveyance. iStow V. Tiffi) 15 Johns. 458. A woman cannot imder our statutes, enforce dower rights in land bought with her husband's money, and conveyed to a third person, who has contracted in writing to permit the husband to receive the benefit of and to have full control over, the prop- erty. The element of seizin in the husband is lacking. Phelps V. Phelps, 143 N. Y.197, 38 N. E. 280. It does not attach to a trust estate. Where a testator devised all of his real estate to B. in trust to sell and dispose of the same; and out of the proceeds to pay debts and legacies, the residue to belong to B. ; but the will contained no provision en- DOWER. 385 titling the latter to actual possession of the land or authorizing him to receive the rents; held, that under the Revised Statutes, B. took no estate whatever in the land, and consequently his widow was not entitled to dower. Germond v. Jones, 2 Hill 569. But a husband cannot cheat his wife out of dower, by a fraud- ulent conveyance for that purpose. Such a conveyance will be set aside. Youngs V. Carter, 10 Hun 194. The right of the owner of the fee in a street on a water front, to collect wharfage, is an interest in land to which dower at- taches. Bedlow V. Stilwell, 91 Hun 384, 36 N. Y. Supp. 129, aflf'd 158 N. Y. 292. Dower is defeated by the husband's deed before marriage, de- livered to a third person. Yutte V. Yutte, 39 Misc. 272, 79 N. Y. Supp. 492. Husband's deed avoided. — It is the generally accepted doc- trine, that when a husband's deed is avoided or ceases to operate, — as when it is set aside at the instance of creditors, or is defeated by a sale on execution under a prior judgment, — the wife is resorted to her original situation, and may, after the death of her husband, recover dower as though she had never joined in the conveyance. Hinchliffe v. Shea, 103 N. T. 153, 8 N. E. 477. Malloney v. Horan, 49 N. Y. Ill, rev'g 36 How. Pr. 260. In partnership realty. — Dower only exists in the portion of it which remains after the dissolution of the partnership, and the payment of its debts. There is no right of dower, inchoate or absolute, in the co-partnership real estate during the continu- ance of the co-partnership, nor after its dissolution, while the firm creditors remain unpaid, and the equities of the partners are unadjusted. Hauptman v. Hauptman, 91 App. Div. 197, 86 N. Y. Supp. 427. An examiner of titles, however, cannot adjust partnership equities; 25 386 PRACTICAL REAI. ESTATE LAW. and he must always insist that ihe partners' wives join in the conveyance, even of real estate belonging to the co-partnership. Widow of child cestui que trust. — ^A devise in trust for the life of a child, and upon the death of the child, to divide among persons who would be entitled had the child died intestate pos- sessed thereof, gives to the wife of a child who dies an interest in the property equivalent to her dower right. Bowii« V. Colt, 171 App. Div. 409, 157 N. Y. Supp. 417. 5. When barred. The provision of Revised Statutes that "a widow shall de- mand her dower within twenty years after the death," is con- strued to be a limitation of 20 years in which she may bring her action for dower. Brewster v. Brewster, 32 Barb. 428. By Code of Civil Procedure, § 1596, an action for dower is barred in twenty years from the death of the husband, unless the wife is under twenty-one, or insane, or imprisoned on a criminal charge. In foreclosure, the twenty year statute runs against the in- choate dower of the wife, before the death of the husband, and as soon as the sale is made. If the wife is not joined, her remedy is to redeem, and not to recover dower; and the action is barred after twenty years from the sale. Code of av. Pro., § 379. Michael v. Kussell, 68 App. Div. 104. Dower in a defeasible estate, is lost when the estate is de- feated. Mofiarta v. McRea, 45 Hun 564, aff'd 120 N. Y. 659. When the grantor of an estate on condition, enters for con- dition broken, the dower of the wife of the grantee, falls with the estate of her husband. Beardslee v. Beardslee, 5 Barb. 324. Adjudication that husband never had title. — Inchoate dower is tarred hy an adjudication that the husband never had title, in an action where the husband, but not tthe wife, is a party. DOWER. 387 6. On condemnation. Inchoate dower in lands condemned by the city of New York, is not estimated or considered, because such dower right may be regulated by the legislature, though its operation is, in effect, to divest the right; the marriage relation itself being within the power of the legislature to modify or abolish entirely. When the husband is paid full value, the corporation becomes seized of the lands in fee simple absolute, discharged of any claim of dower of the wife. Moore v. City of New York, 8 N. Y. 110, aff'g 6 Super. (4 Sandf.), 456. No allowance in condemnation proceedings. — Since inchoate dower is not an interest in real estate, no allowance need be made for it in condemnation proceedings, as the inchoate right is trans- ferred by the proceedings, from the land to the money received for it by the husband. Matter of Central Park Extension, 16 Abb. Pr. 56, 69. 7. Effect of divorce upon. Misconduct of wife. — In case of a divorce dissolving the mar- riage contract for misconduct of the wife, she shall not be en- dowed. 1 R. S., 741, § 8. A wife, being a defendant in a suit for divorce brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband's real estate, or any part thereof. 2 R. S., 146, § 48. On a divorce rendered for her adultery, the wife forfeits her inchoate right of dower in her husband's real estate; and as to his subsequently acquired real estate, she is not endowed of that, because she is no longer his wife. Matter of Ensigii. 103 N. Y. 284, 8 N. E. 544. The finding of the fact of adultery is not sufficient; but there must be a judgment of divorce rendered against the wife. Schiffer v. Pruden, 64 N. Y. 47. 388 PEACTICAL REAL ESTATE LAW. And if the plaintiff fails on account of condonation, there is no bar. Pitts V, Pitts, 64 Barb. 482, aff'd 52 N. Y. 593. Dower is not barred by an interlocutory decree of divorce for adultery of the wife. Hence if the husband dies before the entry of the final decree, the wife is endowed; for the cause of action does not survive, and Code of Civil Procedure, § 763 does not apply. Biyon V. Bryon, 134 App. Div. 320, 119 N. Y. Supp. 41. As to lands acquired by the husband after divorce, there can be no dower, because there can be no coverture. Starbuck v. Starbuck, 173 N. Y. 503, 66 N. E. 193. A divorce obtained by a wife in another state, on grounds not recognized here, does not bar her dower in the lands of the hus- band here. A wife's dower must be determined by the law of the state where the real property is. Van Blaricum v. Larson, 146 App. Div. 278, 130 N. Y. Supp. 925, aff'd 305 N. Y. 355, 98 N. E. 488. A divorce obtained in another state for a cause not recog- nized by the laws of New York state as sufficient ground Jor aiw absolute divorce, does not deprive the wife of her dower in the real estate, even though she is the plaintiff. Van Cleaf v. Burns, 118 N. Y. 549, 556, 23 N. E. 881. 133 N. Y. 540, 30 N. E. 661. But Starhuch v. Starhuch, 173 N. Y. 503, 66 N. E. 193, overrules this to the extent of holding that the decree obtained hy the wife in such a case, is competent and conclusive evidence against her in an ac- tion brought by her for dower in the husband's property acquired subse^ quent to the divorce. "When a woman obtains in a foreign state, a judgment of di- vorce a vinculo against her husband who is a resident of New York state, without service upon or appearance by him, upon a ground not sufficient to justify such a divorce here, she cannot, after the death of her husband, claim dower in his real estate here, even in lands owned by the husband before the divorce. This on the ground of public policy. Voke V. Piatt, 48 Misc. S73, 96 N. Y. Supp. 725. DOWER. 389 A wife who, thinking herself divorced when she is not, mar- ries again, is estopped by such conduct from claiming dower in the real estate of her first husband. Kantor v. Cohen, 98 Misc. 355, 164 N. Y. Supp. 383, aff'd 181 App. Div. 400, 168 N. Y. Supp. 846. 8. Election. A widow is deemed to have elected to take the pecuniary pro- visions under a will in lieu of dower, unless within one year after the death of her husband, she enters upon the lands as- signed to her for dower, or commences an action for her dower. I R. S., 742, § 14, as amended by L. 1895, ch. 1022 and revised in former Real Property Law, § 181 and Real Property Law, § 201. Matter of Tisdale, 110 App. Dir. 857, 860, 97 N. Y. Supp. 494. When widow put to her election. — Dower is not a lien on land, bjit only an estate in it; although it encumbers the land. If the admeasuring and setting off of one-third for dower, would dis- turb or defeat the will, the widow is put to her election. Wilson V. Wilson, 120 App. Div. 581, 105 N. Y. Supp. 151. Although there be no express language providing that a be- quest to a widow shall be in lieu of dower, yet if there be a manifest incompatibility between such provision and dowier, she cannot take both, and is put to her election between them. Matter of Gorden, 172 N. Y. Z5, 64 N. E. 753. Asche V. Asche, 113 N. Y. 333, 335, 21 N. E. 70. Vernon v. Vernon, 53 N. Y. 351, 355. A mere gift of an annuity, is not sufficient to put the widow to her election. Horstmann v. Flege, 173 N. Y. 381, 65 N. E. 303. An absolute direction to sell real estate, in a will, is inconsis- tent with a right of dower; and the widow should elect whether to take a share in the proceeds of sale, or to claim dower in the land. Brink v. Layton, 2 Redf. 79. Acceptance of provision bars dower. — ^Where a will makes 390 PRACTICAL REAL ESTATE LAW. provision for a wife in lieu of dower, her acceptance of it bars her dower in lands conveyed away by the testator in his life- time, as well as in those of which he died seized. In such a case, her dower is barred if she omits for more than a year after his death, to enter upon the land, or bring proceedings for the re- covery or assignment of dower. And she is not entitled to no- tice of the provisions of the will, and of her requirement to elect. Palmer v. Voorhis, 35 Barb. 479. A widow for whom provisions are made in lieu of dower, and by whom such provisions are accepted, is excluded from all share in the residue of the estate, whether disposed of or not; and in its distribution, only those other than the widow, en- titled under the Statute of Distributions, can share. This ap- plies, whether the residue is realty or personalty. Ohamberlain v. CSiamberlain, 43 N. Y. 434. In Re Benson, 96 N. Y. 499. Exchange of lands. — 1 R. S., 740, § 3 provides that when lands are exchanged by a husband, his widow is put to her election within one year from his death, to take her dower in the lands given in exchange. This provision construed to mean an ex- change of equal interests in land, and not partly for money. (See Real Property Law, § 191, for the present statute.) Wilcox V. Randall, 7 Barb. 633. Death of widow without having made election. — The death of the widow within one year from her husband's death, without having made her election to accept a legacy given in lieu of dower, vests the right to collect the legacy in her executor. Flynn v. McDermott, 183 N. Y. 62, 75 N. E. 931. Dower is never excluded by express provision in a will for the wife, except by express words or necessary implication. Konvalinka v. Schlegel, 104 N. Y. 125, 99 N. E. 868. Dower not barred in devise although wife given residue. — A wife is entitled to dower in lands specifically devised to the testa- tor 's brothers and sisters, although by a provision of the will not expressed to be in lieu of dower, she is given all the residue DOWER. 391 of the estate, which is many times greater than the parcel de- vised to the brothers and sisters. Casey v. McGowan, 50 Misc. 426, 100 N. Y. Supp. 538. When the widow is insane, she cannot make her election to take the provisions of the will in lieu of dower under Real Prop- erty Law, § 200; nor can the state lunacy commission, nor any- one else, make the election for her. Camardella v. Schwartz, 136 App. Div. 334, 110 N. Y. Supp. 611. Life estate inconsistent with dower. — The giving a life estate in all of testator's real estate to his widow, is inconsistent with a claim for dower. Matter of Foster, 93 Miac. 400, 156 N. Y. Supp. 1005, aff'd 174 App. Div 864, 159 N. Y. Supp. 1113. * 9. On foreclosure. On the foeeolosuee of a moetgage^ whew the fee ownee mae- EiEs aftee lis PEifDENs AND BEFOEE JUDGMENT^ the Wife's dower is not cut ojf unless she is brought in. Code of Civil Procedure, § 1671, was not intended to cut ojf dower. But this was remedied Sept. 1, 1916, by L. 1916, ch. 518, adding § imia. Inchoate right in equity of redemption. — The wife of a _ grantee of land who has" given a purchase money mortgage, has an inchoate right of dower in the equity of redemption, which is not affected by an action to foreclose the mortgage, to which she is not made a party. Such a defect is not a proper subject for compensation, and discharges the purchaser. Mills V. Van Voorhies, 20 N. Y. 412. A foreclosure wUI not cut off dower superior to the mortgage, even though the wife is joined; unless the complaint clearly notifies her that her right of dower is to be questioned. Fern v. Osterhout, 11 App. Div. 319, 4a N. Y. Supp. 450. 10. Nature of inchoate dower. Inchoate dower outstanding, is an incumbrance on, not a de- * See also Thomas on Mortgages (3d ed.) ; NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 4, p. 852. 392 PRACTICAL EEAL ESTATE LAW. feet in, a title. A purchaser can reject if the contract calls for a title free from incumbrances. Heimburg v. Ismay, 35 Super. (3 J. & S.) 35. Action by wife to set aside deed.— "The inchoate right of dower is a valuable subsisting, separate and distinct interest which is entitled to protection, and for which the wife may main- tain a separate, action." An action will lie by a wife, for the protection of her inchoate right of dower, to set aside a re- corded deed by her husband, so far as it affects her interests, where she did not execute it, and it purports to have been exe- cuted by one described as the wife of the owner, although there is a variance between the Christian name of the purported wife as given in the deed, and her own name. Caifford V. Kampfe, 147 N. Y. 383, 43 N. E. 1, aff'g 84 Hun 393, 32 N. Y. Supp. 353. As basis of action to restrain waste. — Inchoate dower cannot be made the basis of an action to restrain waste. Rumsey v. Sullivan, 166 App. Dlv. 246, 150 N. Y. Supp. 287. 11. Release. Inchoate dower can only be transferred or released to one who has the title, and not to the releasor's -husband. Elmendorf v. Loekwood, 57 N. Y. 332, 325. Dworsky v. Arndstein, 29 App. Dir. 274, 51 N. Y. Supp. 597. A wife cannot, either directly or indirectly, release her dower to her husband. Guidet V. Brown, 3 Abb. N. 0. 295, 34 How. Pr. 409. Carson v. Murray, 3 Paige 483. A married woman cannot convey to her husband her dower right to his lands. Graham v. Van Wyck, 14 Barb. 531, 7 How. Pr. 373. A release of dower by a wife to her husband, is not good. The only effect of such a release is to vest the whole title in the hus- band, and at the same instant her inchoate dower right re-at- taches. Wightman v. Scbliefer, 45 St. R. 698, 18 N. Y. Supp. 551. DOWER. 393 But a divorced woman may release her dower interest to her htisbandj whether such divorce be absolute or limited. § 206, Real Property Law. This means a divorce granted by a court of competent jurisdic- iion in any state. A wife may release her inchoate dower directly to her hus- band, after divorce, either absolute or limited. Former Real Property Law, § 186. This, even though the husband stipulates as to his guilt, and consents that the decree be entered. Schlesinger v. Klinger, US App. Div. 853, 98 N. Y. Supp. 545. "A quitclaim or release by a married woman to a stranger to the title, is ineffectual to divest her of an inchoate right of dower. ' ' Merchants' Bank v. Thomson, 55 N. Y. 7, 13. A release of dower by a wife to a stranger, does not extinguish her dower; that is, a release. to another than the grantee of her husband. Harriman v. Gray, 49 Maine 537. A release of inchoate dower to a person other than the owner of the property, is void, — even though it be to a prior owner who has con- veyed with warranty. A EELEASE OF DOWER BY THE WIFE OF THE EQUITY OWNER, tO the purchaser at foreclosure sale, is good. Release to grantee of husband. — Since L. 1878, ch. 300, a wife can release her dower to the grantee of her husband, through a power of attorney to her husband. Wronkow v. Oakley, 133 N. Y. 505, 31 N. B. 521. The above act was repealed by the former Domestic Relations Law (L. 1896, ch. 272).. But see Real Property Law, § 207 (form- er Real Property Law, § 187), reading as follows: "A mar- ried woman of full age may release her inchoate right of dower in real property by attorney in fact in any case where she can personally release the same." Agreement to execute release during lifetime of husband. — A wife, for a valuable consideration, may make a valid agree- ment during the lifetime of her husband, to execute a release of her dower after his death. Jones V. Fleming, 104 N. Y. 418, 10 N. E. 693. 394 PRACTICAL EEAL ESTATE LAW. The Revised Statutes provide only that a woman about to be married, may release her dower in the property of her husband in writing; but by the same instrument, an equivalent in prop- erty must be provided for her in lieu of dower. This is an in- dication that the legislature did not intend to approve contracts of that nature, without such provision. Ennis v. Ennis, 48 Hun 11. Pecuniary peg vision for intended wife in lieu op dowee. — Beal Property Law, § 198, provides that any pecuniary provision made for the ienefit of an intended wife, and in, lieu of dower, if assented to by her, if she he of full age, by her becoming a party to the conveyance by which it is settled, if she be a minor, by her joining with her father or guardian in that conveyance, bars her right or claim of. dower in all the lands of her fiusband. A conveyance by an infant wife, joining in her husband's con- veyance of his land, is void and not voidable, because she then had no estate or interest in the lands, and there was nothing upon which her deed could operate. Therefore, after the death of her husband, she can maintain ejectment for her dower in such a case. Sherman v. Garfield, 1 Denio 329. Conveyance to. doweress and execution sale against her. — An outstanding inchoate dower cannot be released or merged by a subsequent conveyance to the doweress, and an execution sale against her (during the life of her husband), because she did not convey to her husband's grantee, and a stranger took the title. Huff V. Wheeler, 37 Misc. 7«3, 59 N. Y. Supp. 716. By bargain and sale deed. — Inchoate dower can be released by a bargain and sale deed. It is not necessary to use the words dower or right of dower. Gillilan v. Swift, 14 Hun 574. A release of dower containing the words "and all right of me," vests the whole estate of the grantor in the grantee, the same as a quitclaim deed would. Veit V. Dill, 78 Hun 171, 28 N. Y. Supp. 937. DOWER. 395 To COVER TRACT StTBDIVIDED WITH SOME LOTS ALREADY SOLD. A release of dower can he drawn to cover a large tract of land subdivided, and with lots already sold, hy making it run to a certain individual or corporation^ " including all persons claiming title to the land hereafter referred to, or any part thereof, whether as owner, mortgagee or other- wise." 12. Value, how fixed. Value at time of alienation by husband, — The dower to which a widow is entitled, in lands aliened by the husband during the marriage, is one-third of their value at the time of the alienation, and no more. Walker v. Schuyler, 10 Wend. 480. Evidence of this value should not be given on the trial of the action, but must be shown to the commissioners making the ad- measurement. Yates T. Paddock, 10 Wend. 528. Value at time of husband's death. — Dower must be computed on the value of the lands at the time of the husband's death; and does not attach to subsequent improyements. Emrich v. Emrieh, 129 App. Div. 557, 113 N. Y. Supp. 1052. The rule for computing the value of a wife 's inchoate dower, is set forth in Jackson v. Edwards, 7 Paige 386, 408. DRAINAGE. (See Easements.) DRUNKARD. (See Incompetent.) 396 PRACTICAL REAL ESTATE LAW. EARTH, SOIL AND STONE. Earth removed in altering the grade of a street.— " When in a state of removal, ... it does not appear to be susceptible of any distinct ownership, except in those under whose authority, or by whom such removal is made. ' ' Fish V. Mayor of Rochester, 6 Paige 368. Soil removed, is a chattel; and, under a contract to remove it, the title thereto is not transferred to the mover, unless the owner abandons it. Jones V. Wick, 10 Misc. 112, 3'0 N. Y. Supp. 934. Surplus earth removed, is part of the compensation to the con- tractor for doing the work. Long Island 0. S. & Co. v. CSty of New York, 304 N. Y. 73, 97 N. E. 483. One-half of the stone in a street, taken out in excavating a sewer trench, belongs to the lot owner, if he owns to the center of the street in fee. Deverell v. Bauer, 41 App. Div. 53, 58 N. Y. Supp. 413. The title to excavated materials, is in the owner, and not in the contractor. N. Y. L. J. (editorial), Nov. 13, 1916. EASEMENTS. 397 * EASEMENTS. (See License; Streets.) 1. In general. ■2. Abandonment. 3. Adverse uaer. 4. Limitation of amount. 5. As appurtenances. 6. Beam right. 7. Implied by common ownership. 8. Creation. 9. Drainage. 10. Drainage statutes. 11. As incumbrances. 12. Of light, air and access. 13. Party wall. 14. Revival after destruction. 15. Eight of way. 16. Eight of way by necessity. 17. Sewer rights. 18. Tenants in common. 19. Visible. 1. In general. Defined. — "An easement is a right without profit, created by grant or prescription, which the owner of one estate may exer- cise in or over the estate of another for the benefit of the former. ' ' Greenwood Lake & Port Jervis R. Co. v. New York & Greenwood Lake E. Co., 134 N. Y. 435, 439, 31 N. B. 8f4. A RELEASE OF AN' EASEMENT BY A MORTGAGEE of the dominant estate, is ineffectual without a release by the owkter of such estate; hecause such owner could enjoin a foreclosure sale without the easement, on the ground that it would lessen the price to be brought. An easement over " my property," only applies to lands which the grantor owns in severalty, and not to those owned in common with another. *See also Fiero on Special Actions (3d ed.) and Supplement, 1919; NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 6, p. 670. 398 PEACTIOAL EEAL ESTATE LAW. Deemed grant by grantee. — Since the Revised Statutes, a res- ervation of an easement by the grantor in a deed, is deemed a grant by the grantee to him; and the use of the words of inherit- ance is not necessary to make it perpetual. Schaefer v. Thompson, 116 App. Div. 775, 103 N. Y. Supp. 12-1. An easement of eight of way eesting on peesceiption oe usee ALONE^ is not marhetMe; because the proof of its existence rests on parol evidence. And the fact that a deed of the servient estate conveys expressly subject to it, cannot be construed into a grant, because there is no privity between the owners of the fee of the servant estate and of the easement. A JUDGMENT IN A PAETiTioN ACTION^ to whicJi the owncrs of the fee are parties, that a certain extension of a street is " subject to the rights and' easements of the public and of adjoining owners, as a public street," is not sufficient to confer easements over the street. The grant of an easement must be duly acknowledged, in order to be notice on the record; and unless so acknowledged, does not take effect as against a subsequent purchaser or in- cumbrancer. It comes within the provisions of 3 R. S. (7th ed.), 2195, § 137; and under that section, the question of actual notice has no application, as decided by Chamberlain v. Spargur, 86 N. Y. 603. Nellis V. Munson, 108 N. Y. 453, 15 N. E. 739. Excessive use of an easement may be enjoined, where it is used for more property than the dominant lot. McCullough V. Broad Exchange Co., 101 App. Div. 566, 9S N. Y. Supp. 533, aff'd 184 N. Y. 592. ■ Cut oflf by street opened. — ^When a public street is opened be- tween the dominant and servient estates, easements of rights of way beyond such public street, are thereby cut off. Eeis V. City of New York, 188 N. Y. 58, 80 N. E. 573. An easement can run with the land, although words of inherit- ance are not used, and although it is given in a lease. Whitney v. Richardson, 59 Hun 601, 13 N. Y. Supp. 861. An easement of access is not implied in the case of two parti- EASEMENTS. 399 tion deeds, dividing a house, and leaving the hallway entirely in the part covered by one of the conveyances; because it is not necessary. Whyte V. Builders' League, 164 N. Y. i&9, 58 N. E. 517. While an easement for an elevated railroad in front of prop- erty, cannot be reserved in a deed, yet damages to property thereby, both present and future, may be reserved by a grantor. Drucker v. Manhattan R. Co., 813 N. Y. 543, 108 N. E. 74. Speing eight pipe aceoss highway. — There is no legal right to maintain a private spring right pipe, through or across a public highway. Conveyance to town for highway purposes. — ^An easement only is created by a conveyance to a town for highway purposes. Bradley v. Crane, 201 N. Y. 14, 94 N. E. 359. *2. Abandonment. Non-user. — ^When an easement is acquired by deed, mere non- user, however long continued, does not create an abandonment. Jones on Easements, § 865. Conabeer v. N. Y. C. & H. K. R. Co., 156 N. Y. 474, 51 N. B. 403. Welsh V. Taylor, 134 N. Y. 450, 31 N. E. 896. Haight V. Littlefleld, 147 N. Y. 338, 41 N. E. 696. "Mere non-user is not sufficient to work an abandonment of an easement created by grant, at least in the absence of such un- equivocal acts or conduct as show an intention to abandon. ' ' Henderson Estate Co. v. Carroll Electric Co., 113 App. Div. 775, 99 N. Y. Supp. 365, aflf'd 189 N. Y. 531. Non-user for twenty years, with user of a public road occupy- ing a part of the land over which the private right of way exists, extinguishes the private right. After fifty years, it may be in- ferred that the owners of private rights of way over the addi- tional strip elected to consider the highway as a practical loca- tion of the supposed right of way, or as a substitute for it. Matter of City of Buffalo, 65 Misc. 636, lao N. Y. Supp. 611. *See also NOTE, N. Y. Rpta., Bender Annotated Ed., Bk. 5, p. 373, Bk. 22, p. 1108, Bk. 27, p. 872. 400 PRACTICAL REAL ESTATE LAW. Abandonment of easements of profits a prendre will be estafc- lisbed by long non-user, Mathews Slate Co., Inc. v. Advance Indust. Supply Co., 185 App. DW. 74, 172 N. Y. Supp. 830. Neither does a claim inconsistent with the easement have that effect. White's Bank of Buffalo v. Nichols, 64 N. Y. 65, 74. Act showing intention to abandon. — ^An easement will be deemed abandoned and destroyed, where its legitimate use has been rendered impossible by some act of the owner thereof, or any other unequivocal act showing an intention to permanently abandon and give up the easement. Norris v. Hoffman, 62 Misc. 385, 115 N. Y. Supp. 890, aff'd 133 App. Div. 696, 118 N. Y. Supp. 156, 197 N. Y. 578. Time is not a necessary element in a question of abandon- ment. A cesser to use, accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as a release, without reference to the time during which such cesser to use has continued. Snell V. Levitt, 110 N. Y. 595, 604, 18 N. E. 370. An easement in an old street is abandoned by inclosing and taking possession of so much of the old street as lies between the lot and the new street, and excluding all other persons there- from. A person taking such action, is not permitted to deny that he has elected to abandon his easement in that portion of the old street not included in the new street. Tremberger v. Owens, 80 App. Div. 594, 80 N. Y. Supp. 694. Claim to fee of land. — An easement is not abandoned by the assertion of a claim to the fee of the land over which it is claimed. Lewisohn v. Lansing Co., 119 App. Div. 393. 3. Adverse user. A right of way created by grant may be lost by adverse user, where the use is exclusive of the interest of the grantee and in open hostility to his claim. Smyles v. Hastings, 23 N. Y. 217. EASEMENTS. 401 Claim to ownership free from easement. — Where the owner of land subject to an easement claims to own it free from the ease- ment, and excludes for twenty years the owner thereof, who acquiesces in the exclusion, the easement is lost by adverse pos- session. WoodruflF V. Paddock, 130 N. Y. 618, 39 N. E. 1021. Closing private street. — An easement of right of way over a street shown on a map, but not a public street, is extinguished by inclosing the street with a substantial fence for twenty years. Matter of City of New York, 109 App. Div. 575, 96 N. Y. Supp. 557. Land held adversely. — An easement to use a portion of a piece of ground which was subject to an easement as a street, can be lost by non-user for fifty years, where the land has been held adversely during that period. Matter of Mayor of New York, 73 App. Div. 394, 77 N. Y. Supp. 31. 4. Limitation of amount. Only so much as is necessary. — It is a rule of construction of the grant of an easement, that no more is granted than is neces- sary for the enjoyment of the easement granted. An easement of a carriageway for the use of a barn, carries only as much of the way as is necessary for access. Eighteen feet wide is more trhan enough. Grafton v. Moir, 1 N. Y. Supp. 4, aff'd 30 St. E. 314, 9 N. Y. Supp. 3, 130 N. Y. 465, 39. N. E. 974. By user. — ^When an easement is granted without specifying the amount, the amount is limited by the user thereunder. In case of a pipe right, the location of a pipe once laid cannot be changed. Onthank v. Lake Shore & M. S. R. Co., 8 Hun 131, aff'd 71 N. Y. 194. 5. As appurtenances. Easements pass as appuetenant to the land conveyed, when they are necessa/ry to the enjoyment of the land conveyed, though not mentioned; especially if in actual use. When an easement is held by grant or reservation, a convey- 26 402 PRACTICAL REAL ESTATE LAW. ance of the dominant estate, transfers the easement, although it be not expressly mentioned in the deed. Harris v. Curtis, 139 App. Div. 393, 124 N. Y. Supp. 263. Easements appurtenant, in existence, attached to premises, are conveyed by a deed as appurtenances; and probably even when that word is not used. Hall V. Sterling Iron & R. C!o., 148 N. Y. 433, 42 N. E. 1056. Huttemeier v. Albro, 18 N. Y. 48. The case of Boot v. Wadhams, 107 N. Y. 384, 14 N. E. 281, can he distinguished, as dealing with the granting of an easement. 6. Beam right. Rejectible encumbrance. — ^A beam in a wall is a rejectible in- cumbrance ; and a release of it is not sufficient, if the beams are actually there. Higgins V. Eagleton, 13 Misc. 223, 34 N. Y. Supp. 225, rev'd on ano. ground 155 N. Y. 466, 50 N. E. 287. A beam right is not shown by user for thirty years alone, with out evidence of common ownership or family history. The title to a house without either a wall or a beam right, is unmarket- able. Spero V. Shultz, 14 App. Div. 423, 43 N. Y. Supp. 1016, aff'd 160 N. Y. 660. A beam right in an adjoining wall, is equivalent to a wall; and a purchaser cannot refuse to take title with such a right on the ground that the house has not four walls of its own. Schaefer v. Blumenthal, 169 N. Y. 221, 62 N. E. 175. Whekt not paety wall. — A beam right used for over forty years, can safely he continued. When a contract provides that the easterly and westerly walls are party walls; and on one side there is no wall, hut only a heam right, it can he rejected, — for such a, statement in the contract amounts to a representation that there is a party wall. When only one and one-half inches of the wall is on our lot for part of the distance; and for the rest of the way is entirely on adjoining lots, it is not a party wall. EASEMENTS. 403 7. Implied by common ownership. When the owner of land sells a part thereof, he grants by im- plication to the grantee, all those apparent and visible ease- ments which are necessary for the reasonable use of the property granted; and which, at the time of the grant, are used by the owner of the entirety, for the benefit of the part granted. Lampman v. Milka, 21 N. Y. 305. Wilson V. Wig-htman, 36 App. Div. 41, 55 N. Y. Supp. 806. Wall encroaching on land retained. — Where the wall of a building, on conveyance from a common owner, encroaches on land retained by the grantor, the wall can remain as long as the building stands. Kurkel v. Haley, 47 How. Pr. 75. Where the owner of two tenements, sells one of them, the purchaser takes the portion sold, with and subject to, all the benefits and burdens which appear at the time of the sale, to belong to it, as between it and the property which the owner retains. Maupin, Marketable Title to Real Estate (2d ed.), § 137. Wlien an owner of three adjoining houses, conveys one of them, a drain appurtenant to which extends under the other two houses, the purchaser acquires an easement to continue the drain as against subsequent grantees of the house under which it is located. But no easement would be implied, if the house under which the drain was, had been conveyed first. Stuyveaant v. Early, 58 App. Div. 242, 68 N. Y. Supp. 752, and 68 App. Div. 633, aff'g 33 Misc. 644, 68 N. Y. Supp. 903. Overlapping building. — There is an easement to remain by an overlapping building, upon a conveyance by the common owner. Rogers v. Sinaheimer, 50 N. Y. 646, 648. But this does not apply to a five foot strip, where the building has no side wall. Griffiths V. Morrison, 106 N. Y. 165, 12 N. E. 580. There is an easement to use a building encroaching oh the 404 PRACTICAL REAL ESTATE LAW. grantor's unconveyed land, even after said grantor had con- veyed the land so encroached upon. New York C. & H. River R. R. Co. v. Needham, 39 Misc. 43'5, 6J K. Y. Supp. 992. The conveyance of the servient tenement first, by the common owner, cuts off an easement for a sewer in favor of the domin- ant tenement, because the servitude is not apparent. Butterworth v. Crawford, 46 N. Y. 349, rev'g 3 Daly 57. In a conveyance out of common ownership, of the servient part of the estate, there is no implied reservation to the common owner, of the easement over the part sold, except in case of strict and absolute necessity. Burr V. Mills, 21 Wend. 290. Shoemaker v. Shoemaker, 11 Abb. N. C. 80. Easements of access are not implied by reason of inconven- ience of access, and expense of new street connections, where the grantor conveyed the servient tenement first. Hill V. Bernheimer, 78 Misc. 472, 140 N. Y. Supp. 35. * 8, Creation. When land is granted bounded on a street or highway, there is an implied covenant that there is such a way; that, so far as the grantor is concerned, it shall be continued; and that the grantee, his heirs and assigns shall have the benefit of it. White's Bank of Buffalo v. Nichols, 64 N. Y. 65, 70. An easement may be created by executors with a naked power of sale, over or in, other lands of the estate, if advantageous to the lands sold; but executors cannot, by executory contract, irh- pose a new liability on the estate which they represent. Simmons v. Crisfield, 197 N. Y. 365, 90 N. E. 956. An easement of right of way can be created by prescription by user of twenty years or more. Bushey v. Santiff, 86 Hun 384, 33 N. Y. Supp. 473. Nellis V. Countryman, 63 Misc. 564, 118 N. Y. Supp. 596, rev'd 153 App. r>iv. 500. ♦ See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 17, p. 625, Bk. 30^ p. 283. EASEMENTS. ' 405 A right of way used for fifty years, becomes a way by pre- scription. Longendyck v. Anderson, 59 How. Pr. 1. A driveway between two lots, used in common for fifty years, can be used by both; and neither can prevent the other from using it. Benedict v. Myers, 173 App. Div. 550, 159 N. Y. Supp. 1018. A dam right is acquired by prescription after forty-four years ; is not lost by six years non-user; and passes as appurtenant to the land by a conveyance of it. Hall V. State of New York, 73 App. Div. MO, 77 N. Y. Supp. 282. An easement for the sliding of a railroad embankment, was created by an agreement for a valuable consideration, not to make claims for future damages. No express grant of the ease- ment was necessary as the court held that the agreement was equivalent to a grant. Van Rensselaer v. Albany and West Stockbridge R. Co., 1 Hun 507, 3 T. & C. 630, aff'd 63 N. Y. 65. Drain right. — ^A receipt for $7, stating that it is for the right of drain, does not not constitute an easement, but only a license. Wiseman v. Luoksinger, 84 N. Y. 31. * 9. Drainage. An undeegeound deain oe beook^ walled in, and covered so as to he invisible, and rightfully there, makes the titles to all properties affected thereby, ummarhetable. A conveyance by a common owner, of property through which aji underground drain runs, without mentioning it, cuts off all right to use it above the lot. So held, even though the drain was actually mentioned as appurtenant. The wide distinction between an open and an underground drain, pointed out. Munaion v. Reid, 46 Hun 399, aflf'd in Treadwell v. Inslee, 120 N. Y. 458, 34 N. B. 651. *See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 10, p. 109, Bk. 15, p. 564. 406 PRACTICAL REAL ESTATE LAW. Through or on lands of another. — The owner of land through which a stream flows, may increase the volume of water by draining his land into it, without any liability for damages to a lower owner. But he cannot drain by ditches, into the land of another, without using a stream of water. Waffle V. N. Y. Central & H. R. R. Co., 58 Barb. 413, aff'd 53 N. Y. 11. Agricultural lands. — L. 1895, ch. 384, providing for the drain- age of agricultural lands, is unconstitutional and void. Matter of Tuthill, 163 N. Y. 133, 57 N. E. 303. Drainage assessments in Mount Vernon, under L. 1871, ch. 882, are void. The act is unconstitutional. Matter of Lent, 47 App. Div. 349, 6a N. Y. Supp. 227. The drainage Act, L 1869, ch. 888, was a general state law. Assessments were required to be paid to the treasurer of the commission. The constitutionality of the act was upheld by Matter of Eyers, 72 N. Y. 1; Matter of Lent, 47 App. Div. 349, 62 N. Y. Supp. 227. 10. Drainage statutes. Proceedings by which easements for drainage over lands of third parties may be acquired. 3 R. S., pt. 3, ch. 8, tit. 16. Amended by L. 1904, ch. 75. Of agriculural lands by one person over lands of another. L. 1895, ch. 384. Amended by L. 1896, ch. 503, and by L. 1897, ch. 168. In 1900, L. 1895, ch. 384, was declared unconstitutional by the court of appeals. Matter of Tuthill, 163 N. Y. 133, 57 N. E. 303. The conservation commission has drainage powers under Con- servation Law (L. 1911, ch. 647), §§ 480-491. Art. 8 added to Conservation Law, regarding the drainage of agricultural lands. L. 1918, ch. 445. General Drainage Act. L. 1869, ch. 888. (Repealed by L. 1909, EASEMENTS. 407 ch. 20.) Amendments: L. 1870, ch. 38; L. 1871, ch. 303; L. 1881, ch. 608; L. 1886, cli. 636; L. 1888, ch. 527, validating proceedings in county courts; L. 1890, ch. 557; L. 1892, ch. 321; L. 1896, ch. 819; L. 1899, ch. Ill; L. 1901, ch. 523; L. 1904, ch. 433; L. 1905, ch. 325; L. 1906, ch. 115; L. 1908, ch. 439. L. 1871, ch. 43, excepted Westchester county from the opera- tion of L. 1869, ch. 888; and that county was placed under the drainage provisions of the Revised Statutes (Repealed by L. 1879, ch. 282). Amended by excepting the town of Newcastle, Westchester county from the operation of the act of 1869, by L. 1880, ch. 388. (See Constitutional Amendment of 1919.) Drainage Law. L. 1909, ch. 20. § 2. Land owners may petition to county court. § 4. Appointment of commissioners. § 10. Determination of commissioners to be filed. § 12. Survey to be made, and map prepared. § 13. Map to be filed with county clerk. § 18. Condemnation of land. § 30. Commissioners to make assessments. § 31. Statement and assessment to be filed in county clerk's office. § 34. Levying assessments within thirty days after filing statement. § 36. Payment of assessments annually. § 40. Land to be sold for non-payment. § 41. Rights of purchaser. § 42. Redemption within fifteen months. Art. 4. Maintenance and enlargement of ditches, and assess- ments therefor. § 72. Use of ditches for twenty years conclusive evidence of right. Art. 6. Drainage of agricultural lands. § 84. Town of Newcastle Westchester County, excepted from provisions of this act. §§ 40 and 67. Amended by L. 1909, ch. 240. Amended generally by L. 1910, ch. 624. § 12. Amended by L. 1913, ch. 613. 408 PRACTICAL REAL ESTATE LAW. Amended by adding art. 7, as to corporate sanitary or drain- age districts. L. 1914, ch. 519. Amended generally by L. 1917, ch. 556. 11. As incumbrances. Any easement whatever constitutes a breach of the covenant against incumbrances in a deed, even though the grantee knew of the easement when he took the deed. There is only one ex- ception to this rule, and that is a highway. The words "ease- ment" and "incumbrance," defined. Huyck V. Andrews, 113 N. Y. 81, 85, 20 N. E. 581. An easement for a "tunnel street," one hundred and fifty feet below the surface, is not an incumbrance within the statute pro- hibiting trustees loaning on incumbered real estate. The in- cumbrances meant by the statute, are such as might, by some contingency, subject the property to a claim or lien which would be superior to that of the lender, or otherwise endanger the se- curity. Matter of City of New York, 160 App. Div. 29, 144 N. Y. Supp. 1002, afl'd 212 N. Y. 547, 106 N. E. 1043. The existence of a sewer, five or six feet underground, is not an incumbrance within the meaning of a covenant in a deed. N. y. L. J. (editorial), Sept. 3, 1913, citing an Iowa case: First Unitarian Society v. Citizens Sav. & Tr. Co., 162 la. 389, 142 N. W. 87. 12. Of light, air and access. Not destroyed by cession of fee in street. — The easement of light, air and access over lands proposed to be taken for a pub- lic street, conveyed to the grantees of the abutting land, the grantor reserving to himself the fee of the proposed street, is not destroyed by the cession of the fee of the street to the muni- cipality. * Matter of Mayor, 118 App. Div. 874, 103 N. Y. Supp. 1069. Upon the discontinuance of a public highway by which a grant of land was bounded, the reversion of the fee of the highway is subject to the grantee's easements of air and light over, and EASEMENTS. 409 free use of the open way as such, unless the grant expressly ex- cludes such easements upon such discontinuation. Holloway v. Southmayd, 139 N. Y. 3M, 34 N. E. 1047. And the same is true of any street or way, whether public or private. Kenyon v. Hookway, 17 Misc. 45a, 41 N. Y. Supp. 230, aff'd 21 App. Div. 343, 47 N. Y. Supp. 1138. Eansclit v. Wright, 9 App. Div. 108, 41 N. Y. Supp. 108, aff'd 162 N. Y. 532. Private easements in a street, obtained by the conveyance of a lot on a filed map, are entirely independent of any public ease- ment as a highway. Nicklas v. Keller, 9 App. Div. 216, 41 N. Y. Supp. 173. The distinction between public and private easements in streets, is clearly stated in Matter of City of New York, 160 App. Div. 80, 145 N. Y. Supp. 254, aff'd 212 N. Y. 538, 106 N. E. 631. Inseparable from dominant estate. — ^Easements of light, air and access, appurtenant to real property abutting on a public street; are not always inseparable from the dominant estate. Hence a reservation in a conveyance of easements occupied by an elevated railroad, is valid. Drucker v. Manhattan R. Co., 213 N. Y. 543. Easements of light, air and access, appurtenant to real prop- erty abutting upon a public street or highway, are inseparable from the dominant estate; and upon a conveyance of the latter, such easements pass to the grantee, notwithstanding the grant- or's attempted reservation of the same, or of any rights of ac- tion for the invasion or destruction thereof. Freund v. Biel, 114 App. Div. 400, 99 N. Y. Supp. 1067, aff'd 193 N. Y. 662. McKenna v. Brooklyn Union El. R. Co., 184 N. Y. 391, 77 N. E. 615. "It is undoubtedly the law, as held by this court, that the easements in the public streets of light, air and access cannot be severed from the title to the adjacent property to which these easements are appurtenant, though they may be released to the parties trespassing thereon. . . . Therefore, a grantor can- not on parting with the lands reserve to himself those easements. He may, however, reserve the damages that his grantee may col- 410 PRACTICAL REAL ESTATE LAW. lect for the invasion of these easements; and as to such damages the grantee becomes a trustee for the grantor. ' ' Schomacker v. Michaels, 189 N. Y.- 61, 65, 81 N. E. 55, rev'g 117 App. Div. 125, 103 N. Y. Supp. 334. Easements of light and air are protected only where they are reserved, and remain beneficial to the property in whose favor they exist. Zipp V. Barker, 40 App. Div. 1, 57 N. Y. Supp. 569, aff'd 166 N. Y. &Z1. Deeves v. Constable, 87 App. Div. 352, 84 N. Y. Supp. 592. A grant of an easement of light and air is not implied from the grant of a house having windows overlooking land retained by the grantor, unless there was a clear intention to limit the use of the adjoining lot. Shipman v. Beers, 2 Abb. N. C. 435. A light and air easement does not pass by a grant in this state, unless it be by express terms ; it never passes by implication. De Baun v. Moore, 32 App. Div. 397, 52 N. Y. Supp. 1092, aff'd 16-7 N. Y. 598, 60 N. E. 1110. But a conveyance by a common owner, of one tenement, with windows overlooking and a fire escape overhanging, the other lot gives an easement of light and air over that other lot, which follows the land into the hands of a second purchaser. Havens v. Klein, 51 How. Pr. 82. The doctrine of ancient lights, was never in force in this state. No right to light from adjoining property can be acquired here by prescription. Parker v. Foote, 19 Wend. 309. *13. Party wall. A line wall may be presumed to be a party wall from long user alone. Schile V. Brookahus, 80 N. Y. 614. But the mere using of a beam right for thirty or forty years, ' See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 8, p. 2&&, Bk. 39, p. 1021. EASEMENTS. 411 without evidence of any agreement, or common ownership, does not make a party wall; nor does it give a beam right. Not vis- ible to a layman. Spero V. Shultz, 14 App. Div. 433, 43 N. Y. Supp. 1016, aff'd 160 N. Y. 360. A beam right in ibse for forty years is good, hut does not make: on party wall. Description running through wall between adjoining houses. — Where the owner of two adjoining houses, conveys one by a de- scription running through the center of a wall between the two, that wall becomes a party wall. And it ceases to be such when both buildings are destroyed. ^ Heartt v. Kruger, 56 Super. (24 J. & S.) 382, 5 N. Y. Supp. 192, aff'd 121 N. Y. 386, 24 N. E. 841. Description including wall and two inches beyond. — Where two houses were built by a common owner, and one was con- veyed by a description which included the whole wall and two inches beyond, the grantee of the other lot is entitled to the use of the wall as long as his building stands. Rogers v. Slnsheimer, 50 N. Y. 646. A PAETY WALL EXTENSIOISr ERECTED WITHOUT AUTHOEITY^ Cav, he used by the other party, or, at his option, treated as an encroachment. Tfie title to the land of the party so extending the wall, is unmarTcetable, unless the other party uses the wall, because of the encroachment. Increasing the height. — ^Either proprietor of a party wall may increase the height of the wall, provided such increase can be made without detriment to the strength of the wall, or to the property of the adjacent owner; but he does so at his peril; and if injury results, he is liable for all damages. Brooks V. Curtis, 50 N. Y. 639. A release of a party wall agreement by the fee owners, without the mortgagees, is insufficient to dispose of it. Maupai v. Jackson, 64 Misc. 407, 118 N. Y. Supp. 513, aff'd 139 App. Div. 524, 124 N. Y. Supp. 230. When the center of a party wall is a monument, it controls. Muhlker v. Ruppert, 124 N. Y. 627, 26 N. E. 313. 412 PEACTICAL REAL ESTATE LAW. But where the description runs through the center of a party- wall, without expressly going to said center, the distances con- trol as given, and the party wall is not a monument. Smyth V. McCJool, 23 Hun 595. A description will not run through a party wall, unless it goes to it; even though it states that it goes through the party wall. Meadows v. Michel, 135 App. Div. 313, 120 N. Y. Supp. 319. Desceiptiow BEGiiiriiriNG OPPOSITE PARTY WALL. — If the description begins an absolute distance from a comer, and opposite a party wall; and the distance given, will not come opposite the party wall, it must be construed as beginning opposite the party wall somewhere; hut just where, can only be determined by a confirmatory deed or boundary agreement. As an incumbrance. — ^A party wall is in no just sense to be deemed a legal incumbrance upon property, because the mutual easements are a benefit and not a burden. Brooks V. Curtis, 50 N. Y. 639. But a party wall agreement is an incumbrance justifying re- jection, when it provides for the repair and rebuilding of the wall at the joint expense of the parties. Corn T. Bass, 43 App. Div. 53, 59 N. Y. Supp. 315. The subjection of premises to a party wall, is not a legal in- cumbrance; and a purchaser at auction may not refuse to com- plete his purchase, even though the description did not mention the party wall. The failure of the defendant to inform himself as to the facts, indicated an indifference as to the character of the walls. The mutual easement for the support of the walls, is a benefit and not a burden, because it gives the building more inside room, and its value to him is not diminished by the fact that it is equally beneficial to the adjacent owners. Hendricks r. Stark, 37 N. Y. 106. Partridge v. Gilbert, 15 N. Y. 601. But a party wall agreement is an incumbrance entitling the purchaser to refuse to complete the sale, where the contract pro- EASEMENTS. 413 vides that the title shall be free from all incumbrances; especially if it contains a covenant running with the land, which compels the owner to repair and rebuild. O'Neil V. Van Tassel, 137 N. Y. 897, 33 N. E. 314, distinguishing Hendricks V. Stark, 37 N. Y. 106, because in that case, there was no covenant to repair or rebuild. A party wall entirely on one lot, and subject to use by the other lot by written agreement, is an incumbrance. Giles V. Dugro, 8 Super (1 Duer) 331. Mohr V. Parmelee, 43 Super. (11 J. & S.) 320. When a vendor agrees to convey real estate of stated dimen- sions, "free from all incumbrances except as herein stated," the vendee is not required to accept the premsies of the dimensions named, but servient to a party wall, when the only mention of it in the contract, is "the vendee has the privilege of a party wall as per agreement now in possession of T. Gr. & T. Co. ; ' ' for such provision must be construed, not as stating an incumbrance upon the premises, but as giving something in addition. Samuelson v. Glickman, 113 App. Div. 654, 99 N. Y. Supp. 886. Center off boundary line. — The center of a party wall from one to two inches off the boundary line, is not a substantial objection to the title. Levy V. Hill, 50 App. DiT. 294, 63 N. Y. Supp. 1002. Covenant to contribute to cost. — ^A covenant by an owner, for himself his heirs and assigns, to contribute to the cost of con- struction of a party wall when he shall use the same, does not Tun with the land, and is not enforcible against a subsequent grantee of the land, although his deed is made subject to the covenant. Scott V. McMUlan. 76 N. Y, 141. An agreement to pay for a party wall when used, runs with the land if it expressly binds the grantees of the party using the wall, to so run; otherwise, it seems, the promise of payment is a personal one. Morris v. Burr, 59 Misc. »59, 112 N. Y. Supp. 243. 414 PEACTICAL EEAL ESTATE LAW. A covenant to pay for a party wall does not run with the land if the wall is built; but if the wall is not built, it does so run. Crawford v. KroUpfeiffer, 195 N. Y. 185, 88 N. E. Z9, afif'g 123 App. Div. 848, 107 N. Y. Supp. 891. 14. Revival after destruction. On reconstruction after fire. — Easement of party wall and stairway is destroyed by the destruction of the building by fire; but it is revived upon the reconstruction of the buildings as they were before their.destruction. Douglas V. Coonley, 156 N. Y. 531, 51 N. E. 283. After suspension by brief union of dominant and servient estates. — Where a right of way has been created by deed, and has been open, visible, necessary, and in continuous use for nearly twenty-five years, except during a brief interval when both the dominant and servient estates became united in the same owner, who for his convenience, took a shorter route, such ownership does not extinguish the right of way, but suspends it; and when both estates have been subsequently conveyed with- out reference to it, by deeds absolute, it is revived and must be read into them. Fritz V. Tompkins, 168 N. Y. 534, 61 N. E. 893. * 15. Right of way. A right of way may be built over, provided it is left open for the specified width, and to a height sufficient so as not to inter- fere with its specified use. It is not required that it be kept open for the purpose of furnishing light and air to buildings on ad- joining lots. HoUins V. Demorest, 129 N. Y. 676, 29 N. E. 1093. The owner of the servient tenement in a city, can cover the right of way, so long as sufficient headroom is preserved. Andrews v. Colien, 221 N. Y. 148, 116 N. E. 862. Repair. — One who has a right of way, may repair the way, • See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 1. p. 713. EASEMENTS. 415 provided lie does it without unnecessary inconvenience to the owner- of the fee. McMillen v. Cronin, 13 Hun 68, app. dia. 75 N. Y. 474. Locked gates across. — The owner of the servient tenement can- not put locked gates across a right of way, even though he gives the owner of the right a key. Locked gates are an unreasonable burden. Hateher v. Wasserman, 92 Misc. 263, 155 N. Y. Supp. 714. 16. Right of way by necessity. When incident of grant; duration. — If a man conveys to an- other a piece of land surrounded by other land of the grantor, the grantee has a right of way of necessity through such lands of the grantor, as an incident of the grant. It continues only as long as the necessity exists ; and if the grantee acquires any other means of access, or a public highway is opened through, the right ceases. CSiancellor Walworth in New York Life Ins. & Trust Co. v. Mllnor, 1 Barb. Ch. 353. It becomes extinguished upon the merger of the dominant and servient estates. Fritz V. Tompkins, 18 Misc. 514, 41 N. Y. Supp. 985, aff'd 168 N. Y. 524, 61 N. E. 893. But it does not cease to exist because the owner of the dom- inant estate, becomes a tenant in comon of the servient estate; as one co-tenant cannot grant an easement over any part of the land held in common. Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966. It cannot be extinguished by opening up another way to a private lane, by the owner of the servient tenement. Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966. In whom right to locate lies. — It is the right of the owner of the servient estate to locate the right of way; but if he omits to do so, the owner of the right of way may locate it. Fritz V. Tompkins, 18 Misc. 514, 519, 41 N. Y. Supp. 985, aff'd 168 N. Y. 5S4, 61 N. E. 893. Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966. 416 PEACTICAL REAL ESTATE LAW. Evidence of necessity. — When it is claimed that an easement exists by necessity, evidence of that necessity must be given. While absolute physical necessity need not be shown, as in the case of landlocked premises, or the support of a wall, there must -be a reasonable necessity as distinguished from a mere con- venience. Wella V. Gswbutt, 132 N. Y. 430, 438, 30 N. E. 978. Root V. Wadhams, 107 N. Y. 384, 14 N. E. 281. Access over navigable lake. — It was formerly held doubtful whether the right existed, where access could be had over the water of a navigable lake. Burlew v. Hunter, 41 App. Div. 148, 58 N. Y. Supp. 453. But is has now been definitely decided that the right does not exist where there is reasonable access by water. Bauman v. Wagner, 146 App. Div. 191, 130 N. Y. Supp. 1016. Conveyance op seevient tenement to dummt. — A necessity right of way will not survive a conveyance of the servient tenement to a dummy for the owner of the dominant tenement who has a road frontage. Reservation by implication. — If A. conveys lands to B., leav- ing other land of A. to which he can have access only by passing over the land granted, a way of necessity is reserved, by impli- cation, in the grant. This rule is limited to cases where the burden is apparent, continuous, and strictly necessary; and ap- plies when the grantee is a railroad corporation. Heaton v. N. Y. C. & H. R. R. Co., 86 Misc 467, 149 N. Y. Supp. 71. When a common owner sells part of his land, a way in use may continue over the part sold, in favor of the remainder in the hands of the grantor, if it is necessary for ingress, but not for convenience only. Wheeler v. Gilsey, 35 How. Pr. 139. Huttemeier v. Albro, 15 Super. (2 Bosw.) 546, aff'd 18 N. Y. 48. Where a lot is conveyed which has a frontage on a public street, the grantee does not take a right of way by necessity through an alley lying at the rear of the lot, although there be on such rear a dwelling house; and the grantor has for forty years used the alley as a way of ingress and egress for his ten- EASEMENTS. 417 ant in such house. Nor will such a right of way pass to a grantee under the word ' ' appurtenances " in a deed. Huttemeier v. Albro, 15 Super. (3 Bosw.) 546, afif'd 18 N. Y. 48. A right of way by necessity is not enlarged by the conveyance by the common owner of the servient estate subject to a right of way by the first grantees. The only object of the subject clause, is to protect the grantor, and not to give any new rights; and upon the first grantee's obtaining another way out, the servient estate is entirely relieved. New York Carbonic Acid Gas Co. v. Geyser Gas Co., 72 App. Div. 304, 76 N. Y. Supp. 46. 17. Sewer rights. Acquired only by written conveyance. — ^A sewer right is an easement in realty and can only be acquired by written convey- ance. A verbal consent to its maintenance amounts only to a revocable license. Fonda J. & 6. R. Co. v. Olmstead, 84 App. Div. ia7, 81 N. Y. Supp. 1041. Lost when public nuisance. — A server easement is lost when aborted by. the hoard of health as a public nuisance, even though the easement was granted by, or reserved in, a deed; because the police power forbids its use. An easement foe street pueposes includes the eight to con- nect WITH A SEWEE laid under the surface of the strip of land over which the easement exists. A GRANT OF A EIGHT OF WAY FOE INGEESS AND EGEESS doCS not give a right to lay a sewer in the ground; and if one is so laid, any adjoining owner having an easement over the land, may use it. Easement by necessity. — ^A lot owner on a map cannot connect with a private sewer in a street, by laying his pipe through a neighboring lot, to save expense by shortening the distance to reach the sewer, on any theory of easement by implication or necessity. Heyman v. Biggs, 223 N. Y. 118, ll* N. E. 243, rev'g 164 App. Div. 430, 150 N. Y. Supp. 246. * 18. Tenants in common. Easement by common ownership does not apply where, as to • See also NOTE, N. Y. Rpta., Bender Annotated Ed., Bk. 34, p. 661. 27 418 PEACTICAL EEAL ESTATE LAW. the servient tenement, the owner was only a tenant in common with another. He must own the entire title to both lots in fee. Farley v. Howard, 60 App. Div. 193, 70 N. Y. Supp. 51, affd 172 N. Y. 628. No one can, by his sole act, even by express grant, create an easement in premises of which he owns no more than a right held in common with others. Doubtless the grant is void as to them, and no interest passes which can be used adversely to them. Nor can a tenant in common of property who owns other premises in severalty, so use the last as to acquire or exercise for the benefit of his premises owned in severalty, an easement in the property held in common. The most that can be claimed for such a grant or act of the owner is, that it may act by way of estoppel against him and his heirs, and those claiming under him. He cannot, by grant or by operation of estoppel, confer upon another rights and privileges which he did not have him- self. Crippen v. Moras, 49 N. Y. 63, 67. 19. Visible. Easements capable of physical examination are within the Recording Acts, and the person in possession thereof is protected against an unrecorded release. An example is a railroad in pos- session of an easement over a street. Ward V. Metropolitan Elevated R. Co., 82 Hun 545, 31 N. Y. Supp. 527, aff'd 152 N. Y. 39, 46 N. E. 319. An elevated railroad in front of property is no objection to the title to a lot, any more than a highway is. It is visible; and a consent to its operation is presumed. Webster v. Kings Co. Trust Co., 80 Hun 420, 62 N. Y. Supp. 112, aff'd 145 N. Y. 275, 39 N. E. 964. An easement by a water pipe or drain, laid underground by an unrecorded agreement, is not valid as against a purchaser without notice. Butterworth v. Crawford, 46 N. Y. 349. Nellis V. Munson, 108 N. Y. 453, 15 N. E. 739. Brown v. Volkening, 64 N. Y. 76. EJECTMENT. 419 * EJECTMENT. Conclusiveness of judgment. — It was not safe to take a title through an ejectment suit brought prior to Sept. 1, 1911, until at least three 'years after a first judgment and two years after a second, if a second was obtained. Code of Civil Procedure, § 1525. And if a de- fendant was under a disability, he had three years after its removal to recover the premises. Code of Civil Procedure, §§ 1526, 1527. But since Sept. 1, 1911, by L. 1911, ch. 509, amending Code of Civil Procedure, §§ 1524, 1526, and repealing §§ 1525, 1527, a final judgment is conclusive as to all parties. In ejectment it is not enough to prove a paper title, unless that title is traced back, either to the sovereign, or to someone ad- mitted or proved to have been a common source of the title claimed by both the plaintiff and defendant. In other cases, in addition to the paper title, possession must be proved in some- one through whom the plaintiff claims. Aubuchon v. N. Y. N. H. & H. R. Co., 137 App. Div. 834, laa N. Y. Supp. 581. Remedy for unlawful entry and ouster. — Whenever one person enters upon and takes permanent possession of the real property of another, claiming title thereto, whether it arises from a dis- puted boundary line or otherwise, an unlawful entry and ouster has been made, for which an action of ejectment is the appropri- ate and only remedy. Leprell v. Kleinschmidt, 112 N. Y. 364, 369, 19 N. E. 812. Decree does not prevent acquisition by adverse possession. — An ejectment decree against a man does not prevent his there- after acquiring title thereto by adverse possession; and he can acquire tax leases to strengthen his possession. Monnot v. Mvirphy, 207 N. Y. 240, 100 N. E. 742, rev'g 144 App. Div. 896, 129 N. Y. Supp. 1136. Ejectment for premises not actually occupied, may be brought against one claiming at the commencement of the suit, although his claim has been manifested by words merely. But not of an idle declaration by a party that he owns the premises not * See also Fiero on Special Actions (3'd ed.) and Supplement; NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 7, p. 113, Bk. 29, p. 145, Bk. 30, p. 252, Bk. 38, p. 312. 420 PRACTICAL REAL ESTATE LAW. amounting to a serious claim of title. The words of the statute are: "If they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit. " 2 K. S. 304, § 4. Banyer v. Empie, 5 Hill 48. Telephone wire. — An action of ejectment will lie where the soil is not touched, but part of the space a few feet above the soil is occupied by a telephone wire unlawfully strung by the defend- ant above the plaintiff's premises. The disseizin of the owner is measured by the extent of the space occupied; and the sheriff can physically remove the wire and thereby restore the plain- tiff to possession. Butler V. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716. Encroachment upon highway. — One who has the freehold over which a highway runs, may maintain ejectment for an encroach- ment upon the highway. Etz V. Daily, 30 Barb. 38. Ejectment cannot be maintained against the United States or a soldier thereof. People V. Ambrecht, 11 Abb. Pr. 97, aff'd, see 24 How. Pr. 610. Forcible entry bt the owner of the legal title upon land eur- closed hy, and in the possession of, anotfier, is inadvisaile. Ejectment is the proper remedy. The limitation on ejectment actions is twenty, years; viz.: ad- verse possession. Ejectment cannot be maintained by an administrator, c, t. a,.; because he has only an equitable title. Kelsey v. McTigue, 171 App. Div. 877, 157 N. Y. Supp. 730. In ejectment one who claims title as heir of an intestate, is bound to show the descent of himself and the intestate from some common ancester, together with the extinction of all those lines of descent which would claim before him. Forrest v. Edwin Forrest Home, 13 W. Dig. 135. ELECTION. 421 * ELECTION. (See Dower.) To take land as land. — The power of sale given to executors under a will directing that land be sold and the proceeds dis- tribiited, is extinguished by an election to take the land as such, and a notification of such election to the executors by the parties beneficially interested, before the conversion has actually taken place, where the gift is absolute' and the beneficiaries are com- petent and of full age ; and the executors cannot thereafter law- fully proceed to execute it. Trask v. Sttuges, 170 N. Y. 482, 63 N. E. 534. When land is directed to be turned into money under a power, and paid over to designated persons, and these persons are of lawful age, and upon the sale of the land, at once entitled to the money, they may elect to take the land ; and when they have so elected, and the election is made known, the power of the trustee for conversion ceases and becomes extinguished, and he cannot thereafter lawfully proceed to execute the power. This doctrine arises from the principle that equity will not compel the execution of a trust against the wishes of the persons bene- ficially interested. Train v. Davis, 49 Misc. 103, 169, 98 N. Y. Supp. 816, aff'd 116 App. Div. 917. Mellen v. Mellen, 139 N. Y. 210, 220, 34 N. E. 925. But in order to defeat a power of sale in a will in such a way, there must be a concurrence on the part of all the beneficiaries, in an election to take the land in its unconverted form. An election by part of them is insufficient. McDonald v. O'Hara, 144 N. Y. 586, 39 N. E. 642. Beinging a paetition action is such an election hy the plaintiff; and acquiescence by the defendants might he construed to he an elec- tion on their part. Notice that the executors and heneficiaries are worlc- ing at cross purposes, is a danger signal against taking an executor's deed. *See also Schouler on Wills (Sth ed.) ; NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 26, p. 37. 422 PRACTICAL EEAL ESTATE LAW. Election to take land as land may be made in a partition ac- tion by an infant's guardian ad litem, with the sanction of the court. Train v. Davis, 49 Misc. 163, 98 -N. Y. Supp. 816, afl'd 116 App. Div. 917. McDonald v. O'Hara, 13. Misc. 537, 34 N. Y. Supp. •693, 144 N. Y. 566, 39 N. E. 642. A devisee accepting a devise in a will which requires her to convey some of her own property to a third party, must obey its direction. Shanley v. Shanley, 33 App. Div. 375, 48 N. Y. Supp. 33. An election to construe an ambiguous will as creating a trust, by consenting to a decree settling the executors accounts on that basis, is binding on the parties. Matter of Oltmans, 53 Misc. 308, 104 N. Y. Supp. 473. The election to take an undivided half inteeest in land, does not constitute an election to take the whole. EMBLEMENTS. (See Lease.) ENCROACHMENT. 423 1. In general Z. Abutting walls. 3. On street. ENCROACHMENT. 1. In general. By buildings and walls. — ^Encroachment by buildings on an adjoining lot, of from one to tbree and one-half inches, renders the title unmarketable, and justifies a rejection. Volz V. Steiner, 67 App. Div. SO*, 73 N. Y. Supp. 1006. Klim V. Sachs, loa App. Div. 44, 93 N. Y. Supp. 107. An encroachment by an adjoining building on the premises, a vacant lot, of one and one-half inches, renders the title to the latter unmarketable. Place V. Dudley, 41 App. Div. 540, 58 N. Y. Supp. 671. By an adjoining building on the premises of three inches at the street line and one and one-half inches at the rear, the total length of the encroachment being thirty-six feet, renders the title unmarketable. Reynolds v. Wynne, lai App. Div. 272, 105 N. Y. Supp. 849. Encroachments by a foundation of a brick wall of three or four inches, may be removed in equity. But an encroachment by the wall itself of one-half an inch, may not. Mulrein v. Weisbecker, 37 App. Div. 545, 56 N. Y. Supp. 340. On an adjoining lot of from one-quarter to one-half an inch^ is to trifling to make the title unmarketable. Keitel v. Zimmerman, 19 Misc. 581, 43 N. Y. Supp. 376. An encroachment by a wall of three-quarters of an inch on adjoining property, especially where the adjoining owner has built a wall abutting on it, thus practically locating his line, is to slight for rejection. MacDonald v. Bach, 51 App. Div, 549, 64 N. Y. Supp. 831, aff'd 169 N. Y. 615. 424 PRACTICAL REAL ESTATE LAW. An encroachment by a building on adjoining property, does not make the title unmarketable, if the consent of the adjoining owner to allow the building to remain, is obtained. Eastman v. Home, 141 App. Div. IZ, 135 N. Y. Supp. 553, affd 205 N. Y. 486, 98 N. E. 758. The question as to whether encroachments by adjoining build- ings make a title unmarketable, will be determined upon the merits of each particular case. There is no fixed rule. The test is, whether the encroachment is substantial enough to seriously interfere with the use and enjoyment of the premises. An en- croachment at certain points of a wall, of one or two inches, which can be clipped off by a mason in three or four days, and by retaining wall of loose stones, of five inches, which can be pushed back beyond the boundary line, do not make the title unmarketable; but come within the maxim "de minimis non curat lex." Ungrich v. Shaff, 119 App. Div. 843, 105 N. Y. Supp. 1013. By a building upon adjoining property is no objection to a title if it can remain. And of one-half inch on adjoining land, does not justify a rejection of title. Merges v. Ringler, 34 App. Div. 415, 54 N. Y. Supp. S80, aff'd 158 N. Y. 701. Gold V. Calderazzo, 100 Misc. 598, 166 N. Y. Supp. 928. A wall encroaching for twenty years, creates an easement to remain, by prescription; even though the owner of the land en- croached upon does not know of it. Brovirning v. Goldenberg, 36 Misc. 438, 73 N. Y. Supp. 759, aff'd 71 App. Div. 616, 76 N. Y. Supp. 1010. An encroachment by a wall on adjoining premises, standing over thirty years, while the adjoining owners are under no dis- ability, is no objection to title. Harrison v. Piatt, 35 App. Div. 533, 54 N. Y. Supp. 842, aff'd 158 N. Y. 712. An encroachment by the wall of a building on an adjoining lot for twenty years, gives title to the land encroached upon in fee simple by adverse possession, and not merely an easement. The same rule applies to a portion of an adjoining lot enclosed by a ENCROACHMENT. 425 fence for twenty years; even though both the wall and the fence were erected by mistake as to the line. Roulston V. Stewart, 40 App. Div. 300, 57 N. Y. Supp. 1061. If the owner of a lot on which there is a building with a wall encroaching, acquires title to the land encroached upon, the en- croachment ceases eo instanti. Even if he subsequently severs title to the two lots, the adjoining lot is charged with the servi- tude of the wall; and the title to the dominant lot is not open to the objection that the building encroaches on the adjoining lot. Katz V. Kaia«r, 154 N. Y. 394, 48 N. E. 532. Where a common owner of two lots one built on and the other vacant, conveys the unimproved one, an encroachment by the building on the other lot may remain; because the burden is apparent, continuous and strictly necessary for the enjoyment of the dominant estate. Grrotenstein v. Kaplan, 90 Misc. 403, 153 N. Y. Supp. &14. This decision is erroneous. While Judge Yon Siclen correctly states the law, he fails to apply it correctly. A slight encroachment hy a build- ing is not visible and apparent, — it takes a survey to determine it. Such an encroachment has no legal right to remain, and the adjoining owner cam, compel its removal. When there is an encroachment by a house on the adjoining property of fifteen inches, a deed not purporting to convey any building by description only gives title to so much of the house as stands on the lot, and no more; and the vendor is not liable because part of the house stands on another lot. This case arose on a counterclaim on the foreclosure of a purchase money mortgage, where the defendant set up the above facts; and the court held that the plaintiff was not liable for the value of that portion of the house which stood on the adjoining lot. Burke v. Nichols, 34 Barb. 430, aff'd 1 Abb. Ot. App. Dec. 260, 3 Keyea 670. Under a contract to sell land by a house street number, it is necessary to convey all the land on which the house stands. When, therefore, a house encroaches four and one-half inches on adjoining property, the contract is not fulfilled, although the house can remain by right. Nolan V. Hamed, 13 App. Div. 155, 43 N. Y. Supp. 339. 426 PRACTICAL REAL ESTATE LAW. On a judicial sale, an encroacliment by walls is not covered by the following words in the advertisement: "Subject to any state if facts shown by an accurate survey, — " the terms of sale not referring to any encroachment. The purchaser at such sale has no time, prior to his purchase, to investigate the effect of such a subject clause. Ely V. Mathews, 58 Misc. 365, 110 N. Y. Supp. 1102. By eaves and gutters. — Where one erects a building on the line of his premises, so that the eaves or gutters project over the land of his neighbor, this is not such an encroachment upon the possession of the latter, as will sustain an action of ejectment An action for nuisance is the proper remedy in such a case. Aiken v. Benedict, 39 Barb. 400. An action to recover upon an encroachment, is single; and under Code of Civil Procedure, §§ 481,3339 the plaintiff must join and plead in one action all the elements of his cause of action, both legal and equitable. If he obtains at law a judg- ment establishing his title he is barred from an equitable action to have the encroachment removed. Hahl V. Sugo, 169 N. Y. 109, 6a N. E. 135. Silence alone, during the erection of an encroachment, does not deprive a plaintiff of his right to a mandatory injunction, unless the silence has continued for twenty years. Ackerman v. True, 175 N. Y. 353, 67 N. E. 6»9, rev'g 71 App. Div. 143, 75 N. Y. Supp. 695. Encroachment on. a restricted area makes a title unmarket- able. Holt V. Fleischman, 75 App. Div. 593, 597, 78 N. Y. Supp. 647. Levy V. Schreyer, 27 App. Div. 282, 50 N. Y. Supp. 584. Zipp V. Barker, 40 App. Div. 1, 57 N. Y. Supp. 569, aff'd 166 N. Y. 621. 2. Abutting walls. In a city aftee otte teae. — Since Sept. 1, 1898, by L. 1898, ch. 517, Code of Civil Procedure, § 1499, ■provides for a, permanent ease- ment over a strip not exceeding six inches in width, in a city, encroached upon hy an adjoining wall, after one year, provided a building has been erected by- the adjoining owner, abutting on said wall. ENCEOACHMENT. 427 The Statute does not apply to a case where there is a vacant space between the end of the adjoining building and the en- croaching wall; or, in other words where the two buildings are not opposite each other, but are on different parts of the lots. Bergman v. Klein, 97 App. Div. 15, 89 N. Y. Supp. 634. But when the encroaching wall is one continuous wall for its entire length, and reaches back fifteen feet further than the abutting wall, it can remain. Volz V. Steiner, 67 App. Div. 504, 73 N. Y. Supp. 1006. But not if separated hy an airshaft. The Statute cannot he held to apply to a case where the rear part of an encroaching wall, separated from the front %vall hy an airshaft, is deeper than, the ahutting wall. In such a case, that portion of the encroaching wall in the rear of the abutting wall, must still he treated as an ordinary encroachment. So also, in a case where the ericroach- ment heyond the abutting wall exceeds that at the point of contact, cmd is not in prolongation of the line of contact. While the phrase " abutting wall " may ordinarily imply actual phy- sical contact, yet the Code of Civil Procedure intends to include all cases where the adjoining owners have practically settled the boundry line by erecting permanent structures; and it would seem unimportant that they happened to leave between the two walls, a space which cannot be utilized for any purpose. A spa^e of one inch or less may be treated as ^ough there were actual contact; hut a greater space cannot safely be so treated, — not even of a fraction of an inch. 3. On street. Right in highway cannot be gained by user. — No individual, according to well established principles, can gain for himself an easement over a highway by prescription, or in any way make a valid encroachment upon the public right. No user for any length of time will affect the public right, for the right of the public to a highway is paramount and controlling; and this right extends to the entire territory within its limits. An obstruction to it, however long continued, ;is unlawful, and no right can be acquired by persisting in the maintenance of 428 PRACTICAL REAL ESTATE LAW. it. A presumption of a grant cannot be made to support such an encroachment. Burbank v. Fay, 65 N. Y. 57, 69. McMillan v. Klaw & Erlanger Oonstruction Co., 107 App. Div. 407, 95 N. Y. Supp. 365. Aekerman v. True, 175 N. Y. 353, 364, 67 N. E. 629. An abutting owner cannot acquire title to any portion of a highway by long continued encroachment. Walker v. Cay wood, 31 K Y. 51. The public officers have authority to remove and abate en- croachments on a street at any time. St. Vincent Orphan Asylum v. aty of Troy, 76 N. Y. 108, 114. Cannot be authorized by anyone. — ^An encroachment on a street by a permanent structure, cannot be authorized by any- one where the city owns the fee of the street. City of New York v. Rice, 198 N. Y. 134, 91 N. E. 383. The city of New York may not, by ordinance, permit orna- mental projections on a building to encroach as much as two feet. Such encroachments can only be legalized by ordinance when the public is benefited thereby, either directly or in- directly. The municipality may withdraw a portion of the street from the use of the general public, for hydrants, stepping stones, shade trees, grass plots, coal-holes and vaults, erection of statutary, public monuments, areaways, bay windows, stoops and cellarways, telegraph and telephone poles. ]vfcMillan v. Klaw & Erlanger Construction Co., 107 App. Div. 407, 95 N. Y. Supp. 365. The construction and maintenance of a vault under a public street in New York city, without a permit from the municipal authorities, is a public nuisance which may be abated. Appleton V. City of New York, 163 App. Div. 680, 148 N. Y. Supp. 870, aflF'd 219 N. Y. 150, 114 N. E. 73. By newel posts and steps. — Encroachments on the street and no adjoining property by newel posts and steps, do not render a ENCROACHMENT. 429 title unmarketable, because such encroachments are merely ornamental and removable, and cause no damage ; and the mere possibility of their becoming the subject of litigation, is too re- mote. Van Horn v. Stuyvesant, 50 Misc. 433, 100 N. Y. Supp. 547. An encroachment on the street by a stoop is not necessarily un- lawful, as the municipal authorities only can question it, and the title is not rendered defective thereby. Broadbelt v. Loew, 15 App. Div. 343, 44 N. Y. Supp. 159, aff'd 162 N. Y. 642, 57 N. E. 1105. In case of a stoop encroaching on the street for thirty years, without question, the title is marketable, because the city will probably not question it. Levy V. Hill, 70 App. Div. 95, 75 N. Y. Supp. 19, aff'd 174 K. Y. 536. An encroachment of six inches on a street by a stoop, in a city, though unlawfid because there is no stoop ordinance, is not serious enough for rejection of title. By show windows. — An encroachment of seventeen inches on the street by show windows, is not substantial. Kllm V. Sachs, 102 App. Div. 44, 92 N. Y. Supp. 107. Volz V . Steiner, 67 App. Div. 504, 73 N. Y. Supp. 1006. Webster v. Kings County Trust Co., 145 N. Y. 275, 39 N. E. 964. Encroachments on the street by show windows, stoops and steps, and by cornices as much as two feet and four inches, do not render the title unmarketable. Celestial Realty Co., Inc. v. Childs, 100 Misc. 532, 166 N. Y. Supp. 921, rev'd on other grounds, 182 App. Div. 85. An encroachment on the street by a building, of from one to five and one-half inches, renders the title unmarketable. Klim V. Sachs, 102 App. Div. 44, 46, 92 N. Y. Supp. 107. Smithers v. Steiner, 13 Misc. 517. Encroachments on the street, if slight, do not make a title un- marketable. Leerburger v. Watson, 75 Misc. 3, 134 N. Y. Supp. 818. aff'd 157 App. Div. 915, 142 N. Y. Supp. 1127. An encroachment on a street by a block forming a jog on the official city map. Although not actually opened, the city may take it at any time. Hall V. City of Olean, 83 Misc. 300, 143 N. Y. Supp. 664. 430 PRACTICAL EEAL ESTATE LAW. Suit to enjoin removal. — An owner on whom notice has been served to remove an encroachment on a highway by the com- missioner of highways, is not bound to wait until the latter actually commences to remove the building, before bringing suit to enjoin such removal. Flood V. Van Wormer, 147 N. Y. Z8i, 41 N. E. 569. "Commissioners of highways are authorized to prosecute for the recovery of penalties for encroachments on highways; (1 R. S., 521, § 136, 2d ed.), and are, of course, competent to adjust controversies in relation to such encroachments by amicable settlement" (by the payment of money). CommissionerB of Highwaya of Oortlandville v. Peck, 5 Hill 215, 217. In New York city an encroachment on the street is legalized when no action has been brought to remove it under L. 1896, ch. 310; and where the encroachment is slight, the title is such that specific performance will be required. Merges v. Eingler, 24 Misc. 317, 53 N. Y. Supp. 674, aflf'd 34 App. Div. 415, 54 N. Y. Supp. 280, 158 N. Y. 701. In New York city an encroachment by a building on the street renders the title unmarketable, even though the city has not questioned it, and its common council has attempted to au- thorize it. Acme Realty Co. v. Schinasi, 215 N. Y. 495, 109 N. B. 577. BtTiLDiiTG LINES WITHIN PEOPEETY LINES. — While Village tfustees can regulate projections by buildings into public streets, yet they have no power to establish building lines within the property lines, and com- pel the oivners to build ba^k of their front lines of ownership. ENTAILS. Entails were abolished by the act of 1786, ch. 12; and the pro- visions of 1. R. S., 722, § 3, declaring that every estate which would be adjudged a fee tail, before the statute abolishing en- tails, shall hereafter be a fee simple, was simply declaratory of the then existing law. Van RensBelaer y. Poucher, 5 Denio 35. EQUITABLE CONVERSION. 431 * EQUITABLE CONVERSION. 1. In general. 2. In construing will. 3. Reconversion. 1. In general. Defined. — "Equitable conversion is a constructive change in the nature of property, by which real estate is, in equity, con- sidered as personal property, and personal property as real estate, for the purposes of devise or bequest, descent or dis- tribution; although such change had not been effected at the time to which such equitable conversion refers itself. A court of equity, for certain purposes, looks upon that which is agreed to be done, or which a testator by his will has directed to be done, as actually done, according to the contract in the one case, or the direction of the testator in the other. ' ' Clapper v. House, 6 Paige 149, 153. "Conversion arises only from an express, clear and impera- tive direction, or from a necessary implication of such express direction. ' ' Clift V. Moses, 116 N. Y. 144, 157, 3^a N. E. 393. "When a will expressly confers power upon the executors to convert real estate into money and it is evident that the testa- tor contemplated that it must be done for the purpose of carry- ing the will into effect, and it appearing that in no other way can the intent of the testator be effectuated, the realty will be deemed to have been converted into personalty." Frazer v. Trustees United Presb. Church, 124 N. Y. 479, 485, 26 N. E. 1034. A direction in a will that the executors shall sell the testator's real estate as soon as practicable, and divide it into equal parts equitably converts the realty into personalty. McDonald v. O'Hara, 144 N. Y. 566, 39 N. E. 643, aff'g 9 Misc. 686, 30 N. Y. Supp. 545. • See also Sehouler on Wills (5th ed.) ; NOTE, N. Y. Rpts., Bender Annotated :Ed., Bk. 6, p. 309, Bk. 19, p. 973, Bk. 25, p. 1066, Bk. 34, p. 906. 432 PRACTICAL EEAL ESTATE LAW. Discretion as to details of sale. — The conversion by will is not rendered less imperative by reason of the testator's giving to his executors a discretion as to the time, manner and terms of sale, Graham v. Livingston, 7 Hun 11. "This blending of real and personal property in a trust fund is indicative of an intent to work an equitable conversion. Mat- ter of Eussell, 59 A. D. 242. . . . where a testator provides that the use of his entire property shall be enjoyed by his wife and children, or either, and a considerable portion of his estate is unimproved, is a burden, and from which no use can be ob- tained except by a sale and an investment of the proceeds, to deny the doctrine of equitable conversion as applicable would destroy and nullify the very object which the testator had in mind, namely, the support, care and maintenance of his family. This doctrine would seem to be imperative. ' ' Matter of Faile, 51 Misc. 166, 172, 100 N. Y. Supp. 856. Conversion takes place in a will only when it is the duty of the executors to sell in any event. There are many cases which hold that when the intent is manifest to convert into money, the whole estate is to be regarded as personal from the testator's death; but all of them are decisions where a sale was ordered for purposes of a division. Gourley v. Campbell, 66 N. Y. 169. ' ' When executors or trustees are merely authorized to change real property into personal property, as they may think fit ard their judgment is to be formed from conditions existing after the death of the testatrix, the property will not be deemed to be equitably converted. ' ' Hayden v. Sugden, 48 Misc. 108, 96 N. Y. Supip. 881. Ha;rris v. CHark, 7 N. Y. 243. It does not result in a wilj where only a discretionary power of sale is given, and the scheme of the will can be carried out without such conversion. Matter of Tatum, 61 App. Div. 513, 70 N. Y. Supp. 634, aff'd 169 N. Y. 514_ 62 N. E. 580. EQUITABLE CONVERSION. 433 But it is created by charging legacies on the land, though the power of sale is in terms discretionary, where the personalty is insufficient to pay the debts and legacies. Recht V. Herschman-Bleier-Edelstein Co., 139 App. Div. 300, 123 N. Y. Supp. 932. Duration^ in tbust instrument. — Equitable conversion in a, trust instrument, extends the power of sale beyond the life of the beneficiary, and as long as any real estate remains unsold. Recitals in deeds; releases. — In case of equitable conversion in a will, recitals in deeds of other premises by all the beneficiaries, that the whole estate was converted into personalty, and releases by all the beneficiaries to the executor and trustee, make good title, although there is no actual conveyance by the executor and trustee; on the ground that the premises are free from the claims of those entitled thereto under the will, because any claims which they may have are against the proceeds. In this case, however, there was an adverse holding under a conveyance by one of the beneficiaries, for upwards of forty-five years. Doll T. Pizer, 96 App. Div. 194, 89 N. Y. Supp. 277. Partnership dealing in real estate. — It may be found by a court to exist, when a partnership is conducting the business of dealing in real estate as a commodity; buying it absolutely for improvement and sale, and either dividing the proceeds or rein- vesting; and one of the partners dies. Buckley v. Doig, 188 N. Y. 238, 80 N. E. 913. 2. In construing will. Will construed according to testator's domicil. — A will creat- ing equitable conversion must be construed according to the law of the testator's domicil. And where that is in a foreign state, it seems that the execution of the will must conform both to our own laws and those of the foreign state. Booth V. Timoney, 3 Dem. 421, S How. Pr. N. S. 110. Moultrie v. Hunt, 23 N. Y. 394. The validity of the power of executors to sell lands where there is equitable conversion, depends upon the validity of the 28 434 PRACTICAL EEAL ESTATE LAW. disposition of the proceeds, according to the law of the testator's domicil. Hope V. Brewer, 136 N. Y. 136, 33 N. E. 558. Equitable conversion, applied to a foreign will, is not ef- fectual to apply the laws of a foreign state in construing a trust, unless the proceeds of sale are directed to be carried into the foreign jurisdiction. Peabody v. Kent, 153 App. Div. 386, 138 N. Y. Supp. 33, afl'd 313 N. Y. 154, 107 N. E. 51. Intention of testator. — ^Equitable conversion in a will can never take place, unless such was the intention of the testator. Matter of Bamfleld, 88 Misc. 463, 152 N. Y. Supp. 312. 3. Reconversion. Disposition of part of converted fund undisposed of. — Where real estate has been converted into money in order to carry out the provisions of a will, and a part of the converted fund is un- disposed of by the will, such portion goes to the testator's heirs at law, and not to his next of kin. Matter of Wanger, 74 Hun 353, 26 N. Y. Supp. 80». When, in order to execute that part of a devise which is valid, a sale of the whole property is necessary, the executors have authority to sell; and the heir who inherits by reason of the in validity of a portion of the devise, is entitled only to his pro- portion of the proceeds of sale, which is impressed with its original character of real estate. Bender v. Paulus, 118 App. Div. 23, 105 N. Y. Supp. 240, aflf'd 197 N. Y. 369, 90 N. E. 994. Against the reconversion doctrine. — ^When conversion into personalty was directed by a will devising real estate to a daughter, it was held, in 1863, that upon the death of the daughter intestate (although the land had never been actually sold), it descended to her husband absolutely. Irisli V. Huested, 39 Barb. 411. Where only the proceeds of sale of real estate are given to one, he is the equitable owner, and may reconvert the land. Smith V. Farmer Type Founding Co., 16 App. Div. 438, 45 N. Y. Supp. 193. Hetzel V. Barber, 69 N. Y. 11. ESCHEAT. 435 No distinct and positive act is required for such a purpose; and tlie rule applicable to such a case is, that "in the recon- version of real estate, a slight expression of intention will like- wiset be considered sufficient to demonstrate an election on the part of those absolutely entitled. ' ' Prentice v. Janssen, 79 N. Y. 478, 485. * ESCHEAT. Alien heir.— By the state Constitution, art. 1, § 10, it is pro- vided that the people of the stafe, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state; and that all lands the title to which shall fail from a defect of heirs, shall revert escheat to the people. In such a case the title vests in the state at once without any inquest or office found. The failure to file a declaration of citizenship intention by an alien heir, rendered his title liable to forfeiture by the state in proceedings to be taken; and his failure to so file a declaration, did not con- stitute a waiver or loss of the state 's rights. And his death ipso facto invoked an escheat to the state; therefore he had no in- terest which his heir could inherit. Laws 1893, chap. 207 would have cured this, but that act was passed after his death and was not retroactive. Laws 1877, chap. Ill; Laws 1893, chap. 207, and 1 R. S., 754, § 22, construed. McOormack v. Coddington, 46 Misc. 510, 95 N. Y. Supp. 46, mod. 109 App. Div. 741, later rev'd 184 N. Y. 467, 77 N. B. 979. Stewart v. Russell, 184 N. Y. 601, 77 N. E. 983, afF'g 91 App. Div. 310, 86 N. Y. Supp. 625. "When a citizen dies without a will, the presumption may be that he leaves some person who is his heir and entitled to take any land he may have died seized of, by descent. When, how- ever, it apears that the person claiming to be heir is an alien, he cannot, for that reason, take by descent. No presumption can be indulged in his favor. ' ' Ettenheimer v. Heffernan, 66 Barb. 374, 378. In order to establish title through an escheat, a vendor must show affirmatively that the decedent died without leaving any * See also Fiero on Special Actions (3d ed.) and Supplement, 1919. 436 PRACTICAL REAL ESTATE LAW. lieirs capable of inheriting. The presumption is that no per- son dies without leaving heirs. Matter of Clarke, 131 App. Div. 088, 116 N. Y. Supp. 101, aff'd 95 N. Y. 613. Fowler v. Manheimer, 70 App. Div. &6, 75 N. Y. Supp. 17, aff'd 178 N. Y. 581. One claiming title under escheat must prove that there was an escheat; and this means the elimination of all the heirs of the decedent however remote. This cannot be done literally; hut the title may he made marketable by a judgm,ent in an action barring all outstanding interests. (1) by conveying an undivided interest to a dummy and then bringing a partition action against him joining as defendants all unknown heirs who might have an interest and getting judgment that they have none; or (2) by bringing an action to bar claims under Code of Civil Pro- cedure, § 1638, against such unknown iheirs; or (3) by conducting probate of heirship proceedings. An escheat will not occur if there is one heir who is capable of inheriting. He takes all. Leary v. Leary, 50 How. Pr. 123. Title can be made theough an escheat as follows : Owner dies intestate leaving only one nonresident alien heir who can hold as against the state only by filing a deposition of intent to become a citizen. This heir dies without filing any such deposition coAising an immediate escheat to the state, which releases by an escheat act. If the treaty with the foreign country gives two years to sell, which may he reasonably prolonged yet, after the two-year period, the passage of said escheat is a refusal to so prolong the period. Escheated lands may be eeleased by the commissionees of the lAND OFFICE under the Public Lands Law (L. 1909, ch. 50), §§ 60, 62, iipon petition made within forty years after such an escheat. See also Laws 1905, chap. 360 ; and^ Laws 190Y, chap. 613. They may also be released by special act; but such act is un- constitutional, if no mention is made in the title, of the decedent or the location of the property. McCabe v. Kenny, 5a Hun 514, 5 N. Y. Supp. 678. Johnston v. Spicer, 107 N. Y. 185, 13 N. E .753. An escheat act is a conveyance on which to base color of title by adverse possession. Criswell v. Noble, 61 Miao. 483, 113 N. Y. Supp. 954, aff'd 144 App. Div. 994. 119 N. Y. Supp. 1122. ESCHEAT. 437 Escheat by alienage can only occur where the forfeiture is established by a judicial proceeding by the state. Maynard v. Maynard, 36 Hun 237. There should he added to this, or by legislative enactment based on an escheat. The title of the state by escheat, could not be divested by the foreclosure of a mortgage, though the attorney general is made , a party in behalf of the state. Seitz V. Messerschmitt, 117 App. Div. 401, 102 N. Y. Supp. 733, aff'd 188 N. Y. 587. But since Laws 1908, chap. 284, in effect Sept. 1, 1908, amending Code of Civil Procedure, § 1627, by adding the words " an interest in," this can be done; and a lien by the state could not be cut off by fore- closure until Laws 1899, chap. 528. Escheat title, after release by state, can be passed after actual possession by plaintiff for one year and an action to bar claims against the heirs of decedent {exact phraseology of these heirs as parties in summons to be carefully worJced out). Escheat act preventing adverse possession. — An escheat act expressly providing that interest of grantee must be held sub- ject to any right of heirs at law, prevents acquisition of the title by adverse possession. Fowler v. Manheimer, 70 App. Div. 56, 75 N. Y. Supp. 17, aff'd 178 N. Y. 581. The state of New York is not a necessary party to a partition action because of the allegation in Code of Civil Procedure that a decedent died without leaving known heirs. McKenzie v. Woodward, 101 Misc. 47, 166 N. Y. Supp. 485. Presumption of heirs. — ^Every person, dying, is presumed to leave heirs. Seitz V. Messerschmitt, 117 App. Div. 401, 407, 103 N. Y. Supp. 732, aff'd 188 N. Y. 587. No presumption of escheat. — Escheat must be affirmatively estab- lished in order to make it an objection to title. There is no preswmp- tion of escheat even on the death of an alien. 438 PRACTICAL REAL ESTATE LAW. * ESCROW. "A deed delivered to a third person to be held until the per- formance of some condition, is a delivery in escrow." ISfo title passes until the condition is performed and the deed delivered, except, in case of the death of the grantor before delivery to the grantee, by a fiction of law made from necessity, the delivery relates back to the first delivery to the escrow agent. It presup- poses a contract between the grantor and the grantee; and the depository is the agent of the grantor only; and he is not a party to the contract. The grantor may, in his instructions to the depository, retain the power to terminate the agency at any time; and the grantee must run the risk of this, and gets no title even though the revocation was in violation of the grant- or's contract with him. Stanton v. Miller, 58 N. Y. 193. Van Tassel v. Burger, 119 App. Div. 509, 104 N. Y. Supp. S73. Escrow is delivery to a custodian to be delivered to the grantee as per agreement by both parties. The custodian must not be the agent of either party alone. Van Valkenburg v. Allen, 111 Minn. 333, 126 N. W. 1092. Agent is agent of grantor; revocation. — The agent is the agent of the grantor, not of the grantee, and the grantor may revoke it at any time. The making of a will by the grantor, devising all of his property, revokes it. Rochester Savings Bank v. Bailey, 34 Misc. 247, 69 N. Y. Supp. 163, aff'd 70 App. Div. 622, 75 N. Y. Supp. 1131. Delivery as an escrow can only be made to a stranger; if made to the grantee or his agent as such, the delivery is absolute; and parol evidence to show that such delivery was conditional, is inadmissible. Worral v. Munn, 5 N. Y. 229. It is essential to an escrow that it be delivered to a third per- son, to be delivered to the obligee or grantee upon the happen- ing of some event, or upon the performance of some condition. * See also NOTE, N. Y. Rpte., Bender Annotated Ed., Bk. 6, p. 157. ESCEOW. 439 Where a bond and mortgage and deed were delivered to a third person, to be kept by him during the pleasure of the parties, and subject to their further order, held that the papers were not escrows, and that he was a mere depository. Blake v. Vanderheyden, 1 Paige 385. The estate does not pass but remains in the grantor, until the condition is performed, and the deed is delivered to the grantee. Green v. Putnam, 1 Barb. 500. Title vests by relation. — Where a deed is handed to a third party to be delivered to the grantee on the death of the grantor, the title vests by relation, at the time of the delivery to the third person. Hathaway v. Payne, 34 N. Y. 92. Tooley v. Dibble, 3 Hill 641. Judgment against grantor before absolute delivery. — When, after delivery in escrow, but prior to the absolute delivery, a judgment is obtained against the grantor, under which the land is sold, the purchaser under the judgment gets the land. The deed delivered in escrow, does not take effect until the condition is performed, unless the grantor dies before that time. Jackson v. Rowland, 6 Wend. 666. When not revocable. — An escrow agreement is not revocable by the grantor if it is signed and sealed and deposited on a valu- able consideration. Stanton v. Miller, 65 Barb. 58, rev'd 58 N. Y. 193. 440 PRACTICAL REAL ESTATE LAW. * ESTOPPEL. 1. In general. 2. By deed. 3. By judgment. 4. By silence. 1. In general. "To establish an estoppel in pais, it must be shown: 1st. That the person sought to be estopped, has made an admission or done an act, with the intention of influencing the conduct of an- other, or that he had reason to believe would influence his con- duct, inconsistent with the evidence he proposed to give, or the title he proposes to set up. 2d. That the other party has acted upon, or been influenced by such act or declaration. 3d. That the party will be prejudiced by allowing the truth of the admission to be disproved." Brown v. Bowen, 30 N. Y. 519, 541. Effect when applied to real estate. — "When a party, either by his declarations or conduct, has induced a third person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequence would be to work an injury to such third person or to someone claiming under him." When this principle is applied to real estate, "it is as effectual as a deed would be from the party estopped. ' ' Trustees of Brookhaven v. Smith, 118 N. Y. 634, 641, 33 N. E. 1002. See also Harbeck v. Pupin, 145 N. Y. 70, 79, 39 N. E. 722. Conduct of a party is an estoppel only when it induces action in another which cannot be withdrawn from without loss. Waring v. Somborn, 83 N. Y. 604. An estoppel is not created by acts constituting admissions of conclusions of law, but only by admissions of facts. Brewster v. Striker, 3 N. Y. 19. ♦ See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 3, p. 480, Bk. 25, p. 97. ESTOPPEL. 441 Estoppels bind parties and their privies in estate and blood. Union Dime Savings Institution v. Wilmot, 94 N. Y. asi, 228. Estoppels differ from evidence in this: that the former are re- ceived as conclusive, and preclude all inquiry into the merits of the title; while evidence is merely the medium of establish- ing facts which do exist or have existed. Mutual Life Ins. Co. v. Corey, 135 N. Y. 326, 336, 31 N. E. 1095. A party who writes his name on a blank piece of paper, does not, except in a case where the doctrine of estoppel applies, be- come bound to an obligation thereafter, written thereon, unless it can be shown that he gave the person who wrote it, authority to do so. Richards v. Day, 137 N. Y. 183, 33 N. B. 146. An instrument not under seal, cannot be pleaded by way of estoppel. Davis V. Tyler, 18 Johns. 490. A corporation may estop itself; for the rule, that where a principal has not disaffirmed an unauthorized act of his agent within a reasonable time after it came to his knowledge, he will be deemed to have acquiesced in such act, applies to corporate bodies as well as individuals. Sheldon H. B. Co. v. Eickemeyer H. B. M. Co., 90 N. Y. 607. First Nat'l Bk. v. Commercial Travelleo-s Home Ass'n, 108 App. Div. 78, 95 N. Y. Supp. 454, aff'd 185 N. Y. 575. Levying taxes does not estop a municipality from claiming title to the land. Consolidated Ice Co. v. Mayor, 166 N. Y. 92, 101, 59 N. B. 713. An administratrix who institutes proceedings to sell for debts in the surrogate 's court is estopped from claiming an individual interest in the land; even though the proceedings are void. Starbuck v. Starbuck, 173 N. Y. 503, 66 N. E. 193. Not SO if brought hy a creditor. By recitals. — A recital in a mortgage that the premises are the same as this day conveyed by the mortgagee to the mortgagor, 442 PRACTICAL REAL ESTATE LAW. estops the mortgagee and his heirs from denying the convey- ance of the premises. Coray v. Matthewson, 7 Lans. 80. By contract. — "A party who has secured to himself the bene- fit of a contract and has accepted and used these benefits, has estopped himself in the courts from denying the validity or binding force of the instrument, or from setting up or asserting to the contrary." Hathaway v. Payne, 34 N. Y. 92, 109. By acceptance of benefits. — The following rule of equity up- held : One who accepts a benefit under a deed or will, must adopt the whole contents of the instrument; conforming to all its pro- visions and renouncing every right inconsistent with it. Havens v. Sackett, 15 N. Y. 363, 365. By acceptance of proceeds of sale. — The decision in Stuy- vesant v. Weil, 41 App. Div. 551, 554, 58 N. Y. Supp. 697, rev'd on other grounds, 167 N. T. 421, that estoppel by the acceptance of surplus money is not conclusive, is unsound. When the proceeds of sale in a partition action are deposited with the county treasurer, and the money is paid out by him on a court order to the attorney for a party, upon a petition made hy the party, the latter is estopped. The receipt of surplus monies arising from the sale of land on execution, does not preclude the owners from questioning the validity of the sale, as they did nothing to encourage the pur- chasers to bid. Wood V. Jackson, 8 Wend. 9, 31. The same rule applies to the receipt by the mortgagor or his representatives, of surplus money arising on the sale of the mortgaged premises. But he must refund the surplus money be- fore he can have the foreclosure set aside by the court. Candee v. Burke, 4 T. & C. 143, 145. Distinguished from waiver. Waiver involves the conduct of only one party; Estoppel involves the conduct of both. Waiver involves both knowledge and intention; Estoppel may arise without intention to mislead. Danville Lumber and Mfg. Co. v. Gallivan Bldg. Co., 97 S. E. 718 (N. Car.). ESTOPPEL. 443 2. By deed. An administratrix is estopped as to her individual interest, by making a defective sale to pay debts on her own application. Rider v. Union I. R. Co., 17 Super. (4 Bosw.) 169. The giving of a satisfaction piece of a purchase money mortgage by a mortgagee, estops her from questioning the mortgagor's title. {In this case, the mortgagor did not record his deed.) The acceptance of a deed containing a statement that the con- veyance is made subject to all hens of mortgages, does not estop the grantee from contesting the validity of a mortgage. Purdy V. Coar, 109 N. Y. 448, 17 N. E. 352. Where a powbe of sale was given to executoks, with the consent of certain persons, one of whom died prior to the former Real Property Law, thus rendering the power inoperative ; and all the remaindermen joined in the executor's deed, either as executors or individually, the grantors will he estopped from claiming any individual interest in the premises; and the title can he passed on the theory that the grantee acquired such interests. Surplus description. — Words which are part of a description of premises already sufficiently described without them, do not constitute an estoppel. Edmonston v. Edmonston, 13 Hun 133. The ownek of an adverse chain of title, hy accepting payment and giving a satisfaction piece of a mortgage in the regular chain of title, thereby admits the superiority of the latter. Where a will gave the executor no authority to sell real estate, but he, with the knowledge of the heirs, obtained an order of court authorizing him to sell, and, at their request, negotiated a sale, received the purchase money, and deeded the premises, the heirs informing the purchaser that the executor was author- ized to make the sale; held, that the heirs were estopped from denying the executor's authority, and the purchaser having paid the price, entered into possession, and made valuable im- provements, with the knowledge of the heirs, they were com- pelled to execute a conveyance to him. Favill V. Roberts, 50 N. Y. 228. 444 PRACTICAL REAL ESTATE LAW. Parol evidence of representations made by a grantor prior to the execution of a deed, is admissible to show an estoppel. Mattes V. Frankel, 65 Hun 203, 306, aO N. Y. Supp. 145, aff'd 157 N. Y. 603, 5S N. E. 585. If a man conveys land which is not his, and afterwards pur- chases the land, he shall notwithstanding, be bound by his deed, and will not be permitted to aver that he had nothing. Jackson v. Murray, 12 Johns. 201. Jackson v. Bull, 1 Johns. Cas. 81, 90. The cases which hold that where one conveys without title, and afterwards becomes the owner, this shall enure to the bene- fit of his grantee, mean that the grantor must acquire a beneficial interest in the premises sold, not a mere naked authority to sell. Overseers of Bridgewater v. Overseers of Brookfield, 3 CJow. 39'9. 3. By judgment. A party cannot enjoy the rights awarded to him by a judg- ment and deny its force as an adjudication. Mills V. Hoffman, 92 N. Y. 181, 190. Acceptance of the proceeds of a judicial sale, estops a party from setting up its. invalidity. Steinhardt v. Cunningham, 55 Hun 375, aff'd 130 N. Y. 292, 29 N. E. 100. A portion of a lot was sold on partition sale, but was omitted from the decree of sale. All the owners released except one, and she was paid and receipted for her share of the proceeds of sale; but no release was obtained from her before her death. "She, therefore, knew of the sale, made no objection thereto, but received full payment for her share therein." Held, that she was estopped from claiming any interest, and that the par- tition sale made good title. Garnar v. Bird, 57 Barb. 277. The decision in Stuyvesant v. Weil, 41 App. Div. 551, 554, 58 N. Y. Supp. 697, Rev'd 167 N. T. 421, that one element of estoppel is lacking, viz.; that the purchaser did not act in re- ESTOPPEL. 445 liance on the acceptance of the proceeds, is unsound. The true principle is that the person who comes into court and accepts the proceeds of sale, thereby submits himself to the jurisdic- tion of the court and becomes bound by the judgment. 4. By silence. Omitting to assert title knowing of improvements being made by another. — One claiming title to lands, who omits to assert such title, knowing that someone else was acquiring title and making extensive improvements thereon as owner, in ignorance of his claim, is estopped thereby from disputing the title of the other party. Brown v. Bowen, 30 N. Y. 519. No duty to speak. — But silence does not estop, when there is no duty to speak. New Yoo-k Rubber Co. v. Rothery, 107 N. Y. 310, 314, 14 N. E. a69. Not bringing law suit. — A man may not be estopped for not bringing a law suit. Viele V. Jud8on, 83 N. Y. 33, 39. A widow is estopped from claiming dower, where, at a sale in her presence and without objection from her, it was represented to the purchaser that her claim of dower was extinguished. Wood V. Seely, 3^ N. Y. 105. Suffering sale of own property by another without objec- tion. — "It is a well settled rule of law, that if the owner of property stands by and allows another to sell it, as his own, to a bona fide purchaser, without objection and without giving no- tice of his claim thereto, he will be held to have consented to, and sanctioned the sale, and will not afterwards be permitted to claim such property of the purchaser. This is a sound prin- v?iple, founded upon the plainest dictates of fair dealing and common honesty. (Brewster v. Baker, 16 Barb. 613.) " Cheenpy v. Arnold, 18 Barb. 434, 440, aff'd 15 N. Y. 345. 446 PRACTICAL REAL ESTATE LAW. One who stands by and acquiesces in the sale of his own land by a person claiming to own it, and suffers the purchaser to pay the purchase money, is estopped from claiming the land. Rider v. Union I. R. Oo., 17 Super. (4 Bosw.) 169. ESTOPPEL CERTIFICATE. (See Accounting; Mortgage; Usury.) EVICTION. (See Construction; Warranty.) EVIDENCE. 447 * EVIDENCE. (See Pedigree.) 1. In general. 2. Foreign statutes and language. 1. In general The admission of improper evidence in an equity action is not fatal, if proper evidence is given to sustain the decree. Matter of McGee, 5 App. Div. 527, 38 N. Y. Supp. 1062. The rejection of a title by a title company or a lawyer, is not competent evidence, but hearsay. The defects constituting a defect in title must be shown. Gatling v. Central Spar Verein, 67 App. Div. 50, 73 N. Y. Supp. 496. "Memoranda and entries made by deceased persons in the usual course of business, though not the most satisfactory kind of evidence, are received from the necessity of the case, and the evidence is not admissible where the necessity does not exist." But they cannot be received unless the person who made them is dead. Mere absence from the state, is insufficient. Brewster y. Doane, 2 Hill 537. Entries and memoranda made by persons since deceased, in the ordinary course of professional employment, are competent secondary evidence of the facts contained in them, where they had no interest to misrepresent or misstate. They are admitted from necessity, especially where they are declarations against interest, such as receipts for money. Livingston v. Arnoux, 56 N. Y. 507, 518. An entry made by a public officer, in the discharge of his of- ficial duty, in a book which he is bound to keep as a record of his proceedings, is admissible in evidence to prove his performance * See also Chamberlayne's Modern Law of Evidence. 448 PEACTICAL REAL ESTATE LAW. of the acts to whicli it relates. This, even though the officer is a party to the action, and the proof is offered in his behalf. Bissell V. Hamblin, 13 Super. (6 Duer) 512. Exemplifications of all records in the public offices of any- state or territory, made up in accordance with the provisions of United States Eevised Statutes, § 906, must be admitted in evi- dence in any court of any state. Said section reads: "All records and exemplifications of books, which may be kept in any public office of any state or territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other state or territory, or in any such country, by the attesta- tion of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or dis- trict in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the state or territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the state, territory, or country aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the state, territory or country, as aforesaid, from which they are taken. ' ' The testimony of a son as to representations made to him by his parents, is inadmissible to show the place of his birth. McCarty v. Deming, 4 Lans. 440. The descbiption in a conveyance into a testatoe^ is admissible to expladn an ambiguity in Ms will. Negotiations or conversation as to written contract. — The rule that parol evidence is inadmissible to add to or vary the terms EVIDENCE. 449 of a written contract, precludes e\ddence of the negotiation which preceded, or conversation which accompanied, the mak- ing of it, unless necessary to explain ambiguous provisions, the meaning of which cannot be ascertained with certainty by an in- spection of the writing. Corse V. Peek, 103 N. Y. 513, 7 N. E. 810. The reservation of a life estate cannot be established by parol, as against a deed in fee, because it contradicts a writing. Woodard v. Foster, 64 Hua 147, 18 N. Y. Supp. 827, aff'd 138 N. Y. 874. Declarations of a vendor of chattels, or the assignor of a chose in action, made before he parted with his interest therein, are inadmissible against a vendee or assignee for value. This rule applies to the assignment of a mortgage; but in causes relating to real property, such declarations are admissible. Merkle v. Beidleman, 165 N. Y. 21, 58 N. E. 757. Exemplified copies of records of a public nature, such as those of a church, are, and at common law were, admissible in evi- dence. Jacobi V. Order of Germania, 73 Hvm 602, 26 N. Y. Supp. 318. A local history is not competent evidence upon the question as to the date when possession and occupancy by a private in- dividual began. ' Roe V. Strong, 107 N. Y. 350, 14 N. E. 294. 2. Foreign statutes and language. There is no presumption that our statute law prevails in other states. The presumption is that the common law obtains there. First Nat. Bank v. National Broadway Bank, 156 N. Y. 459, 51 N. E. 398. Foreign law is usually a question of fact. Genet v. Delaware & Hudson Canal Co., 163 N. Y. 173, 57 N. E. 297. The court cannot take judicial notice of foreign laws. They must be pleaded and proved like any other fact. Eleetro-Tint Engravii^ Co. v. American Handkerchief Co., 130 App. Div. 561, 115 N. Y. Supp. 34. 29 450 PRACTICAL REAL ESTATE LAW. Foreign state statutes must be proven by an exemplification thereof, and not by the printed statute books of such states. It is by virtue of a statute of this state that our own statutes are read in court from a printed book. Packard v. Hill, a Wend. 276. Foreign language translation is a question of fact, not of law ; and the court will not take judicial notice of the meaning of foreign languages. Hossbach v. Behr, 139 App. Div. 793, 134 N. Y. Supp. 379. EXCEPTION AND RESERVATION. 451 EXCEPTION AND RESERVATION. 1. In general. 2. To stranger is void. 1. In general. Distinguished; ambiguity. — ^A reservation is always some- thing taken back out of that which is clearly granted; while an exception is of some part of the estate not granted at all. A re- servation is never of any part of the estate itself, but of some- thing issuing out of it. An exception or reservation, in case of ambiguity, must be- construed most favorably to the grantee. Myers v. Bell Telephone Co., 83 App. Div. 623, 82 N. Y. Supp. 83. Reservation and exception in deeds are often used indiscrim- inately; and their meaning does not depend upon the words alone, but upon the nature and effect of the provision itself. Smith T. Cornell University, 21 Misc. ^20, 45 N. Y. Supp. 640. A reservation of a right of way by a grantor, though not re- served to his heirs, runs with the land. But it was otherwise at common law. Schaefer v. Thompson, 116 App. Div. 775, 102 N. Y. Supp. 121. And is available to a susequent grantee, although not men- tioned in the deed. Wells V. Tolman, 88 Hun 438, 34 N. Y. Supp. 840, rev'd on ano. ground 156 N. Y. 636, 51 N. E. 271. The eeseevation of a eight to close a steeet in the following language: " The party of the first part reserves the right to close any portion of Wickes avenue, should it so elect," is personal; and the at- tempt to exercise such right hy a successor in title, is ineffectual. The reservation of aU damages sustained in consequence of a railrbad crossing the lands conveyed, in a deed delivered be- for the railroad acquired title, was held repugnant to the grant, and void. Dennieon v. Taylor, 15 Abb. N. C. 439. 452 PRACTICAL REAL ESTATE LAW. Exception of premises lawfully conveyed.— An exception in a deed of all parts of the premises which have been lawfully con- veyed away, does not include premises mortgaged by the grantor. A mortgage is not a conveyance in that sense. Terrett v. Brooklyn Improvement Co., 18 Hun 6, rev'd on ano. ground 87 N. Y. 93. The exception in a, deed of " all lots heretofore conveyed/' means all lots conveyed of record; and nob contracts to sell. There should he taken froin the grantor, in such a case, however, an affidavit that the lots in question have not been actually conveyed. Upon the exception of a part of the soil (marl), in a deed, without words of inheritance, the grantor takes only a life estate therein; and if it is for a term of years it passes to the grantee at the end of the term. Lucusterine Fertilizer Oo. v. Stilwell, 52 How. Pr. 153. Excepting and reserving an inside parcel twenty-two feet square, does not convey it, although no right of way to the excepted parcel is reserved. Exception of parcel dedicated to private easements. — Except- ing and reserving a parcel of land, dedicated iy a former instrument to private easements, excepts the fee. 2. To stranger is void. To person not a party to a deed. — ^An exception or reserva- tion to a third person, not a party to the deed, is void. Craig V. Wells, 11 N. Y. 315, 333. A reservation or exception in favor of a stranger to the con- veyance, is void and inoperative ; and the grantee is not estopped from denying the efficacy of such exception or reservation. Beardslee v. New Berlin L. & P. Co., SO? N. Y. 34, 100 N. E. 434. A reservation in a deed, of the privilege of a well, for the lots east and west, not owned by the grantor, is invalid; because a reservation, to be good, must be to the party executing the deed, and not to a stranger to it. Ives V. Van Auken, 34 Barb. 566. EXCEPTION AND RESERVATION. 453 Parol evidence to avoid rule. — ^A reservation to a stranger, is void; and that stranger cannot prove, dehors the record, in order to avoid this rule, as against a subsequent purchaser, by oral testimony, that it was the real grantor, though not so in name. Tuscarora Club v. Brown, 315 N. Y. 543, 109 N. E. 597, rev'g 154 App. Div. 366, 139 N. Y. Supp. 766. But this does not apply to a trustee named in the deed, be- cause he is not a stranger, Nield V. Jupiter, 175 App. Div. 733, 16S N. Y. Supp. 465. 454 PRACTICAL EEAL ESTATE LAW. * EXECUTION SALE. (See Sheriff; Signature.) 1. In general. Z. Certificate of sale. 3. Defects in execution. 4. What interest is sold. 5. The money judgment. 6. Land purchased with pension money. 7. Proof of execution. 8. Defects in sale. 9. Effect of sale and redemption. 10. Stay. 11. Statutes. 1. In general. Sale for cash only. — The sheriff is bound to sell for cash only, on execution. Watson & Pittinger v. Hoboken Planing Mills Co., 156 App. Div. 8, 140 N. Y. Supp. 822. No limitation of time for delivery of deed. — The sheriff can be compelled by mandamus to give a deed, after thirteen years, because the Statute of Limitations does not run against such a writ. People ex rel. Ehrlioh.v. Grant, 61 App. Div. 338, 70 N. Y. Supp. 504. A purchaser can maintain summary proceedings to remove a person from possession under Code of Civil Procedure, § 2232; and only the fact of the sale under execution, and the perfecting of title thereunder, need be proved. Getting v. Mohr, 34 Hun 340. The words "such an execution," contained in the second sentence of Code of Civil Procedure, § 1380, include executions * See also Bliss' Code of Civil Procedure (.&th ed.) and Supplement, 1919; Parsons' Code of Civil Procedure; Fiero on Special Actions (3d ed.) and Supplement, 1919. EXECUTION SALE. 455 issued upon judgments which are not, as well as those which are, liens upon the real property of a judgment debtor. Atlas Refining Co. v. Smith, 52 App. Div. 109, 64 N. Y. Supp. 1044. An execution issued out of the city court of Yonkers, may, under a special provision of the act for its organization, be issued direct to the sheriff of Westchester county, without docketing the judgment in the county clerk's, office. Prime v. Anderson, 29 Hun &44. A COMPOSITION OF MECHANIC'S LIEN OEEDITORS_, BY L. 1916, CH. 507, IN EFFECT July 1, 1916, mwif tahe precedence of prior docketed judgments. In making titles through execution sales after that date, these provisions must be carefully considered. Homestead exemption. — The Homestead Exemption Act, L. 1850, ch. 260, exempts from sale on execution, the lot and build- ings occuped by a householder who has a family, to the extent of $1,000. But this is a personal right which the householder can- not convey to his grantee; and upon such conveyance of the premises, the same can be sold on execution issued on a judg- ment against the householder. Allen V. C!ook, 26 Barb. 374. 2. Certificate of sale. Contents; certificate presumptive evidence.— A sheriff's cer- tificate of sale must contain only a description of the premises, the price bid, the consideration paid, and the time when the purchaser will be entitled to a conveyance. 2 R. S., 370, § 42. And § 44 makes such a certificate presumptive evidence of the facts therein contained ; but this means only what is required to be stated. Therefore a recital of the judgment and issuance of the execution, cannot establish those facts, both of which must be established in order to make good title. Anderson v. James, 27 Super. (4 Rob.) 35, aiT'd 6 Alb. L. J. 166. Nature. — A sheriff's certificate of sale is nothing more than a proceeding to enforce the judgment. It conveys no interest in the land. It is at most but evidence of steps taken in the pro- ceedings to collect the judgment by enforcing the lien which the 456 PEACTIOAL REAL ESTATE LAW. statute gives upon the judgment debtor's land. It is not con- structive notice; and not a cloud on title after the expiration of the lienof the judgment and fifteen months thereafter. It is not a conveyance. Davidson v. Crooks, 45 App. Div. 616, 61 N, Y. Supp. 362. Reynolds v. Darling, 42 Barb. 422. After a lapse of forty years, the lien of the judgment ceases, upon the legal presumption that the judgment is paid; and in such a case, there exists a legal presumption just as strong, that the judgment debtor redeemed from the sale, and thereby de- stroyed the validity of the certificate. Dixon V. Dixon, 89 App. Div. 603. Filing. — The certificate of sale was first directed to be filed in the county clerk's office by L. 1820, ch. 184; and was first re- quired to be recorded by the clerk, by L. 1857, ch. 60, § 1. Reynolds v. Darling, 42 Barb. 418. The omission to file the certificate will not prejudice the pur- chaser 's title. The act of filing is not a condition precedent, but merely directory; and the sheriff's omission should not preju- dice the purchaser. Jackson v. Young, 5 Cow. 269. The statute requiring the sheriff to deliver one such ccrtifi- eate to the purchaser, and to file one with the clerk within ten days after the sale, is directory merely; and the failure to com- ply with it does not affect the purchaser's title. O'Brien v. Hashagen, 20 Hun 564. Assignment. — An old sheriff's certificate of sale, held hy the estate of an insolvent decedent, against land heavily encumbered by prior mortgages, can be disposed of by an assignment by the administrator to the owner of the land, for $10, on a decree of the surrogate authoriz- ing such sale. 3. Defects in execution. A defect in the execution, renders the sale void. An execu- tion directing the sheriff to collect the judgment out of attached personal property; and if that is insufficient, out of attached EXECUTION SALE. 457 realty, is void imder Code of Civil Procedure, § 1370. It should direct all the personalty to be exhausted before the real estate ia levied on. No title is acquired by a purchaser of real estate under such an execution, because the process is void. Place V. Riley, 98 N. Y. 1. An execution issued within one year after the judgment creditor's death, is void; and a sale under execution against a decedent's estate without leave of court, is void. Wallace v. Swinton, 64 N. Y. 188. Prentiss v. Bowden, 145 N. Y. 342, 40 N. E. 13. An execution issued out of the wrong court, is a nullity; and a sale under it is void. Field v. Paulding, 1 Hilt. 187, 3 Abb. Pr. 139. Irregularities. — ^An execution directing the sheriff to levy on lands whereof the defendant was seized on the second of May, when the judgment was docketed on the twenty-second of May, is an irregularity which does not affect the title of a purchaser. Jackson v. Davis, 18 Johns. 7. An execution against property not tested in the name of any court is merely an irregularity, which may be amended or dis- regarded, and of which the sheriff cannot take advantage. Douglas V. Haberstro, 88 N. Y.. 611. An execution directed to be returned to the wrong court, and actually so returned, is an irregularity merely, and is amend- able. Wright V. Nostirand, 94 N. Y. 31, 47, mod. 98 N. Y. 669. An execution tested in the name of the supreme court, when the judgment was obtained in the city court, is all right; because it would have been good if not tested at all. (Douglas v. Haber- stro, 88 N. Y. 611;) and an erroneous direction to return to the county clerk instead of to the clerk of the city court, is of no con- sequence; because the law, and not the direction contained in the paper, was controlling on the sheriff. Wright V. Noatrand, 94 N. Y. 31, 48, mod. 98 N. Y. 669. Matter of Kupfer & Oo., 165 App. Div. 570, 150 N. Y. Supp. 1037. 458 PRACTICAL REAL ESTATE LAW. An execution returned to the wrong court, is merely irregular. Ennis v. Broderick, 45 Super. (13 J. & S.) 92. Form under Code. — The provisions of Code of Civil Pro- cedure, § 1369 (execution within ten years), do not control as to the form of an execution issued under § 1252 (levy after ten years). Garczynski v. Russell, 75 Hun 497, Z7 N. Y. Supp. 458. If the execution is lost, the title is unmarketable. Goldman V. Kennedy, 49 Hun 157, 1 N. Y. Supp. 599. But in an action, evidence may be introduced outside of the record, to establish the proper issuance of the execution. Leland v. Cameron, 31 N. Y. 115. A copy filed in pursuance of the provisions of Code of Civil Procedure, § 726, may cure this. 4. What interest is sold. Title only of defendant on certain day. — The sale is only of the right title and interest of the defendant on a certain day. Every man ought to examine the title of the defendant carefully before he attempts to bid, because he will be compelled to take whatever title the defendant had. Maupin, Marketable Title to Real Estate ('2d^d.), § 57. Unless the defendant had no interest at all in the land sold; in which case the purchaser will be relieved. Maupin, Marketaible Title to Real Estate (2d ed.), § 58. Misstatement by creditor's attorney as to title. — He will also be relieved if the creditor's attorney told him at the sale, that the title was good; and it was not good. Dwight's Case, 15 Abb. Pr. 259. Caveat emptor; judgment subrogated to subsequent mort- gage. — The rule of caveat emptor applies to every purchaser at a sheriff's sale of either real or personal property by virtue of an execution. He buys at his peril; and if, by any valid agreement, the judgment has lost its position as a lien upon real estate, his lien under the purchase is just what the judgment creditor had. If the judgment was subrogated to the lien of a subsequent mort- EXECUTION SALE. 459 gage, even though the agreement was not recorded, the pur- chaser is bound by it. Frost V. Yonkers Savings Bank, 70 N. Y. 553. The sale relates back to the date of the docketing of the judg- ment; and so cuts off all conveyances and incumbrances made by the judgment debtor subsequent to that time. Maupin, Marketable Title to Real Estate (2d ed.), § 57. The title of a purchaser at an execution sale, is not clouded by conveyances made by the judgment debtor after the docketing of the judgment. Doody V. HoUwedel, S3 App. Div. 456, 48 N. Y. Supp. 93. Sheriff's deed relates back to time of sale. — A sheriff's deed under execution, no matter how long it may have been executed after the time to redeem, relates back to the date of the sheriff's sale, cutting off all intervening liens. (In this case, the certifi- cate of sale was properly filed.) Dumond v. Church, 4 App. Div. 194, 38 N. Y. Supp. 557. An equitable title to real estate is not subject to levy and sale on execution. Bates V. Legerwood Mfg. Co., 130 K Y. 300, 39 N. E. 103. Interest under contract for purchase. — The interest of a per- son in possession of land under a subsisting contract for the pur- chase thereof, cannot be sold on execution, at law, even if the whole purchase money is paid. The sale on execution, of the interest of a person holding a contract for the purchase of lands, is prohibited by 1 R. S., 744, § 4. But in all other cases the bare possession of the defendant, although it be a mere tenancy at will, or on sufferance, or a possession without color of right, is such an interest as may be sold on execution. Talbot V. Chamberlain, 3 Paige 319. Tax leases not cut off by sai-e. — When a purchaser from the judg- ment debtor huys up tax leases, they will not he cut ojf hy the execution sale. A contingent remainder in a trust estate, may be sold on exe- cution, to satisfy a judgment against the remainderman. Cohalan v. Parker, 138 App. Div. 849, 123 N. Y. Supp. 343. 460 PRACTICAL REAL ESTATE LAW. Real property conveyed in fraud of creditors, can be sold on execution; even before an action is brouglit to set aside the deed; (but only as long as it remains in the hands of the fraudulent grantee.) Smith V. Reid, 134 N. Y. 568, 31 N. E. 1082. Interest as tenant by the entirety. — An execution sale covers the interest of a judgment debtor as tenant by the entirety; and the purchaser takes as tenant in common, subject to the wife's right of survivorship; but in such a case, the purchaser cannot maintain a partition action. Barthowaik v. Sampsg of a contract showing that the original sale included the gore; or (3) hy the owner maintaining an action against all parties in interest, and obtaining a judgment that the gore was erroneously omitted from the first deed. See also under "Power." In case OB' A TEUST WHICH EXTENDS BEYOND THE LEGAL PEEIOD^ and of where a general power of sale is given, to executors, — if the power is exercised before the illegal portion comes into being, the title is good. Purchase money mortgage foe whole amount. — Executors can- not sell and take back a purchase money mortgage for the whole amount. At least twenty per c&nt. should be in cash. They cannot sell an undivided interest in premises, where the testator owned the whole. A will stating after "payment of my debts," gives a power of sale to the executor. The power of sale will be deemed to have been given to pay debts, and the sale becomes a duty which a court of equity will enforce. Rositzke v. Meyer, 176 App. Div. 193, 163 N. Y. Supp. 613. A deed for a nominal consideration, is a defective exercise of a power of sale. Binzen v. Epstein, 58 App. Div. 304, 69 N. Y. Supp. 789, aff'd 173 N. Y. 596. Owners working at cross-pueposes with executors. — A power ■ of sale is not well exercised, if the owners who can elect to take the land as land, have started a partition action, or are known to be working at cross-purposes with the executors. A mortgage made by one of several devisees, can be cut ojf'by the exercise of a power of sale in the will. Under Code of Civil Procedure, as amended by L. 1914, eh. 44,3, in effect Sept. 1, 1914. One or more becoming incapable or dying. ^ — The provisions of former § 2692, that where one of two or more executors or administra- tors, beco-mes a lunatic, or a criminal, or otherwise incapable, the others may act, has been repealed; but the others may act where one dies, or his letters are revoked. § 2563. Must file oath. — Before an executor or administrator can act, he mv^t file his official oath. § 2568. (7%is must be examinsd.) The appointment/ qualification^ and revocation of letters, of executors and trustees^ are now separate. Where the same- EXECUTORS. 483 person is designated in a will as executor and trustee, his qualification in one capacity does not entitle him to act in the other. Bond. — Every executor who is required to hold, manage or invest, any money or property for the benefit of another, must execute a bond unless the will expressly directs to the contrary; § 2639 ; unless the will was executed prior to Sept. 1, 1914. § 2639. Qualifying exegutoes may exercise powees, the same as if the others had joined. § 2694. May apply to sueeogate foe advice. — An executor or administra- tor may apply to the surrogate for advice as to the sale of real or per- sonal property. . § 2685. Time to qualify. — Executors must qualify or renounce within fifteen days after probate, or ivithin such further time as moAj be allowed; or they are deemed to have renounced. § 2627. * EXECUTORY DEVISE. Limitations. — The old common law did not allow a remainder or other legal estate, to be limited after a fee. Later, a species of limitations known as springing or shifting uses, sprang up; and finally, executory devises, limiting a fee after a fee, upon some contingency operating to defeat the estate of the first taker (as upon his death without issue, or other specified event), became common. Van Home v. Campbell, 100 N. Y. 287, 3 N. E. 316, 771. "Where it is made to depend upon the non-execution by the first taker of a power of absolute disposition, it is void. Van Home v. Campbell, 100 N. Y. 387, 3 N. E. 316, 771. Tt is invalid, where there is interposed between the primary and secondary limitation, a disposing power whereby the first taker is entitled to dispose of the whole fee for his own benefit; and thereby cut off and defeat the ulterior limitation. Banzer v. Banzer, 10 Misc. 34, 30 N. Y. Supp. 803, aff'd 11 Misc. 310. 33 N. Y. Supp. 266, 156 N. Y. 429, 51 N. E..291. . An executory devise is void, when it is limited upon a con- tingency that will not necessarily occur within twenty-one years and nine months after a life or lives in being. Held, that in a will * See also Schouler on Wills (5th ed.). 484 PRACTICAL REAL ESTATE LAW. prior to the Revised Statutes, a devise by a testator to Ms son, with a direction that if he should ' ' die without heirs lawfully begotten," the same should go to the testatoi-'s other sons, was void; because the executory devise was limited on an indefinite failure of issue. An indefinite failure of issue occurs, when the issue or descendants of the first taker become extinct, without reference to any particular event. Tator V Tator, 4 Barb. 431. Contingent limitations and executory devises to persons not in being, are bound by a decree against their virtual representa- tives; viz: the persons having the first valid estate of inherit- ance. Mead v. MitcheU, 17 N. Y. aiO, 314. Goebel v. Iffla, 48 Hun 21, aflf'd 111 N. Y. 170, 18 N. E. 649. An executory devise or bequest limited to the use of a corpora- tion to be created within the period allowed for the vesting of future estates and interests, is valid. A limitation contingent upon the competent exercise of legislative power within the per- iod of the lawful suspension of the ownership of property, can- not be said to be unlawful; although the contemplated action of the legislature may not be in accordance with any then exist- ing law. Bimrill v. Boardman, 43 N. Y. 354. The contingent limitations provided for by the Revised Statutes, where a remainder is limited upon an estate which would have been adjudged to be a fee tail before the Revised Statutes, is explained in Buel v. Southwick, 70 N. Y. 581, 585. EXEMPLIFICATION. (See Evidence.) FAMILY. (See Construction.) FAMILY HISTORY. (See Adverse Possession; Pedigree.) FENCE. 485 FENCE. (See Boundaries.) 1. In general. 2. Fencing covenants run with the land. 1. In general. A fence is a fixture, and belongs to the owner of the soil. "If a man knowingly enter upon the land of another, without per- mission, and build a house or a fence, the erection belongs to the owner of the land; and he may pull it down, and dispose of the materials as he pleases." Thayer v. Wright, 4 Denio 180. Within the meaning of cutting timber privilege, to be used for building purposes, a fence is a building. Livingston v. Ten Broeck, 16 Johns. 14. A fence within a newly opened street, is a building within the provisions of Greater New York Charter, § 971. Parsons Bros. v. CSty of New York, 107 App. Div. 324, 95 N. Y. Supp. 131, aflf'd 184 N. Y. 604. Action to have fence line restored. — The form given of a com- plaint in an action in equty to have a line fence restored to the proper line. The judgment should define the rights of the parties. Cutwater v. Moore, 124 N. Y. 66, 26 N. E. 329. A fence on a division line should be built equally on the land of each party; and if it is built more than one-half on one party, he is entitled to relief. Higgins V. Kingsley, 82 Hun 150, 31 N. Y. Supp. 100, aff'd 155 N. Y. 634. The maintenance of fences by agreement, is out of the juris- diction of fence-viewers. Adams v. Van Alstyne, 25 N. Y. 232. 486 PRACTICAL REAL ESTATE LAW. Fence over line for long time. — The fence of an adjoining owner being two feet over the line for a long time, makes an unmarketable title on a judicial sale. Ridley v. Walter, 153 App. Div. 65, 137 N. Y. Supp. 1050. The statute law on the maintenance of fences between adjoin- ing owners, is in the Town Law {L. 1909, ch. 64), §§ 360-369, as amended by L. 1911, ch. 86. How TO BUILD A FENCE ON A BOUNDAEY LINE. If a st0V£ WOll OT hedge, place the center of the fence on the line; but if a post fep^e^ place the posts entirely on the land of the builder, letting the wire or boards extend over the line. 2. Fencing covenants run with the land. A fencing covenant runs with the land, although containing no words of inheritance. Dey V. Prentice, 90 Hun ZT, 35 N. Y. Supp. 563. A covenant by a landowner to build and maintain fences bordering the right of way of a railroad, runs wi4;h the land, and is binding on his grantee. Satterly v. Erie R. Co., 113 App. Div. 463, 99 N. Y. Supp. 309. Concklin v. N. Y. Central & H. R. R. Co., 149 App. Div. 739, 741, 134 N. Y. Supp. 191, upp. dis. 207 N. Y. 753. An agreement with a railroad to maintain a partition fence, runs with the land and is an incumbrance thereon, if it imposes any other liability than that imposed by the statute relating to "division fences." There is a statute, L. 1854, ch. 282, § 9, which provides that every landowner who has received a specific sum for fencing land taken by a railroad, must build and main- tain such fence. Blain v. Taylor, 19 Abb. Pr. 228. FEDUCIAEY PURCHASES. 487 * FIDUCIARY PURCHASES. 1. In general. 2. How cured. 3. By agents and attorneys. 4. By directors or officers of corporation. 5. By executors and administrato(rs. 6. By guardians. 7. Through third party. 8. By trustees. 9. Through wife. 1. In general. Prohibited, when for own benefit. — "No party can be per- mitted to purchase an interest in property, and hold it for his own benefit, where he has a duty to perform in relation to such property, which is inconsistent with the character of a pur- chaser on his own account. ' ' Fulton V. Whitney, 66 N. Y. 548, 556. A trustee or other person standing in a fiduciary relation, can- not deal with or purchase, the property in reference to which he holds that relation. The real proposition is, that he who under- takes to act for another in any matter shall not act in the same matter for himself. His interest must not conflict with his duty. Adequacy of the price given, makes no difference. Gardner v. Ogden, 33 N. Y. 337. Forbes v. Halsey, 26 K Y. 53, 65. " It is a settled principle of equity that no person who is placed in a situation of trust or confidence in reference to the subject of the sale can be a purchaser of the property on his own account. ' ' And this principle is not confined to a particular class of per- sons, such as guardians, trustees, or solicitors; but is of uni- versal application. Torrey v. Bank of Orleans, 9 Paige 649, 663, aff'd 7 Hill aeo. * See also Schouler on Wills (5th ed.) ; Heaton's Surrogates' Courts (3d ed.). 488 PEACTICAL EEAL ESTATE LAW. Voidable only at election of beneficiaries. — Suck a purcliase is not void, but voidable only at the election of tbe beneficiaries. Boemim v. Schenck, 41 N. Y. 18». Hubbell V. Medbury, 53 N. Y. 98. The purchasing trustee himself, however, cannot assail the transaction. Read v. Knell, 143 N. Y. 484, 39 N. E. 4. When a gore in front of a wife's land, useless in itself, is pur- chased by the husband, the title vests in the wife by virtue of his being a trustee for her, and prohibited from purchasing for his own benefit. DickinBon v. Codwise, 1 Sandf. Ch. 314. A person standing in a fiduciary relation to the owner, can- not purchase from him, without communicating to him every particle of information that he himself possesses, with respect to its value. McMahon v. Allen, 35 N. Y. 403. By a tenant. — ^A tenant may purchase at a sale on execution against his landlord. Nellis V. Lathrop, 32 Wend. 121. By a mortgagee in possession. — A mortgagee is not converted into a trustee (except in a very limited sense), so as to pre- vent his purchasing an outstanding title, or under another lien. He can purchase at a sale on execution. But it is the duty of a mortgagee in possession to pay taxes, so he cannot purchase at a tax sale; and if he agrees to pay any liens and neglects to do so^ he cannot purchase on the foreclosure of them. Ten Eyck v. Craig, 62 N. Y. 406, 410. 2. How cured. Eeleases. — The most complete method of curing such purchases, is to procure releases from all the persons who can question them. Statute of Limitations. — Before the Code of Civil Procedure, the twenty year Statute of Limitations applied. People V. Open Board of Stockbrokers Bldg. Co., 93 N. Y. 98. Wolf V. Schmidt, 15 Daly 107, S N. Y. Supp. 705. FIDUCIAEY PURCHASES. 489 But it is now settled that the ten year Sta.tute of Limitations (Code of Civil Procedure, § 388), applies; and that the time be- gins to run from the day of sale. Smith V. HamUton. 43 App. Div. 17, 59 N. Y. Supp. 521. Hubbell V. Medbury, 53 N. Y. 98. A PEQPEE CONriEMATION OF THE SALE BY THE COUET, wUl CUTB the defect; but the facts must he expressly submitted, and not merely spelled out from the papers. A trustee purchasing trust property when he has an interest to protect, and when he has obtained permission of the court to bid, upon notice to all the parties in interest, gets a good title. But it is not sufficient that the formal leave to purchase which is usually granted to the parties on a foreclosure or partition sale, has been inserted in the judgment. Such a provision is inserted merely to obviate the tecinical rule that parties to the action cannot buy; and is not intended to determine equities between the parties to the action, or between such parties and others. SchoUe V. SehoUe, 101 N. Y. 167, 4 N. B. 334. Bayer v. East, 161 N. Y. 580, 56 N. E. 114, is a dangerous authority to follow; because it may have been decided on the gromnd of laches. 3. By agents and attorneys. By agents. — "It is well settled . . . that an agent, em- ployed to sell, cannot himself become the purchaser; and an a,gent employed to buy, cannot himself be the seller, So, an agent employed to purchase cannot purchase for himself. ' ' story on Agency, § 311. The above principle was applied to a purchase by a real estate agent employed by the owner. Clark V. Bird, 66 App. Div. 384, 73 N. Y. Supp. 769, app. dis. 171 N. Y. 700, 64 N. E. 1119. An agent who is employed to purchase an estate, or to trans- act any particular business for another, cannot purchase the estate for himself, or act for his own benefit in relation to the subject-matter of such agency, to the injury of his principal. Reed v. Warner, 5 Paige 650. Any agent occupying a fiduciary relation to his principal, is 490 PRACTICAL REAL ESTATE LAW. precluded from buying th.e property which is the subject of the agency. Archer v. Archer, 164 App. Div. 81, 149 N. Y. Supp. 426. By attorneys in fact. — A power of attorney may create the re- lation of trustee and cestui que trust; and the attorney cannot deal with the trust property individually. Anderson v. Fry, 116 App. Div. 740, 103 N. Y. Supp. 112. The attorney cannot sell to himself through a third person. Bain v. Matteson, 54 N. Y. 663. By attorneys at law. — ^An attorney who is employed to per- fect -or defend a title to land, cannot, either during the con- tinuance of the employment, or after its termination, without disclosing the facts to, or obtaining the consent of, his client, avail himself of information acquired (or which it was his duty to acquire), and purchase an outstanding title for himself. Such a title enures to the benefit of his client or his vendee. The ob- ligation of fidelity which an attorney owes to his client, is a con- tinuing one; and good faith and public policy require this rule. Downard \. Hadley, 116 Ind. 131. Nichols V. Riley, 118 App. Div. 404, 103 N. Y. Supp. 554. Where an attorney who has the conduct of a sale, becomes the purchaser, his client may avoid the sale and claim the benefit of the purchase. No fraud is required to be proved or alleged, as such a purchase is one which equity forbids. Fulton V. Whitney, 66 N. Y. 648. Yeoman v. Townshend, 74 Hun 625, 26 N. Y. Supp. 606. When an attorney for the plaintiff purchases on foreclosure, and his client makes him a new loan on closing, the client thereby waives his right to claim the benefit of the purchase. Where on a judicial sale by an assignee for the benefit of creditors, the purchaser without the knowledge of the trustee or assignor, entered into an agreement with the assignor's at- torney, who procured the order to sell and conducted the sale as auctioneer, to share with him the profits realized, the sale is null and void; and the owner may assert the title as against the FIDUCIARY PURCHASES. 491 purcliaser. And an order confirming the sale is not binding upon the insolvent when he seeks to avoid the illegal sale. Bush V. Halsted, 131 App. Div. 538, 106 N. Y. Supp. 133. ,4. By Directors or officers of corporation. Corporate directors act in a fiduciary capacity. In every ac- tion where the interest of the corporation is involved, particu- larly where the same is in conflict with the individual interest of the directors, they act as trustees, and are strictly accountable to the creditors' and stockholders of the corporation. All acts of a director in his own behalf, where his personal interest is in conflict with that of the corporation, are voidable. Billings V. Shaw, 209 N. Y. 265, 282, 103 N. E. 142. Munson v. Syracuse G. & C. R. Co., 103 N. Y. 58, 8 N. E. 355. Contrary to public policy. — ^For the trustees of a corporation to become purchasers from the corporettion, and to deal with the property for their own benefit or advantage, is clearly in viola- tion of their fiduciary relation to the corporation, and is con- trary to public policy. Butts V. Wood, 37 N. Y. 317. Barnes v. Brown, 80 N. Y. 527. Palmer v, Cypress Hills Cemetery, 122 N. Y. 429, 435, 25 N. E. 983. PuECHASEEs pEOTECTED. — When 0- director has purchased real estate from his corporation, the title is voidable in his hands; but a purchaser is protected from him unless he has either: (1) actual notice of the fact that he was an officer; or (2) record notice of it from the certificate of incorporation, or from the corporate deed, or otherwise. The eight to question such a puechase is pueely a stockhold- EE^s eight. Therefore a new deed by the corporation will not cure it, but some action mu^t be taken by the stochholders themselves. A coNVETA3srcE TO A DiEECTOE^s wiFE^ is just as Voidable as if made to him. A peesident^'s wife can puechase from the corporation if (1) there xvas a schedule price of lots fixed, before the purchase, by someone other than the president; and (2) the wife paid that amount for the lot, out of her separate estate. A deed by a corporation to the wife of its president, is voidable at the instance of the stockholders. Taylor v. Klein, 47 App. Div. 343, 62 N. Y. Supp. 4, aff'd 170 N. Y. 571. 492 PRACTICAL REAL ESTATE LAW. Unless the purchase was at an auction sale. Miller v. Weinstein, 52 App. Div. 533, 65 N. Y. Supp. 387, aff'd 166 N. Y. 608. A COEPOEATION SELLING EEAL ESTATE TO AN OFFICEE, moJceS « iwid^ able title; amd the fact that the purchaser paid full valus has no bear- ing. Bid creditors cannot question the transaction^ after a sale ami con- veyance by the officer to a bona fide purchaser. OfFICEE taking ACKNOWLEDGMENT STOCKHOLDER OE OFFICEE OF GRANTED COEPOEATION. — In a deed by one corporation to another, if the officer who acknoweldged for the grantor, is a stOchholder or officer of the grantee, as shown by the record, the deed is inadmissible in evi- dence under the Code of Civil Procedure, § 936. Sv^h officer is an " interested witness." A confirmation by a majority of the stockholders, is not obliga- tory on the rest. Cumberland Coal Co. v. Sherman, 30 Barb. 553. The Stock Coepoeation Law (L. 1909, ch. 61), § 66, prohibiting . transfers to officers and stockholders, must not be construed as relating in any degree the old prohibition against purchases by directors. How CT7EED. — A conveyance by a corporation to its president, is cured by proof that it was made for the purpose of financing only. Cured also by a vote of the stockholders, at a stocTcholders' meeting specifically called for that purpose, directing the execution of a corv- firmatory deed. Also by a reconveyance to the corporation. The only right which a stockholder has, is to set aside the deed; and this is nullified by a recon- veyance in good faith. Ceeditoes can attack the conmeyance to a director (Darcy v. Brook- lyn & N. Y. Ferry Co., 127 App. Div. 167, 111 N. Y. Supp. 514, aff'd 196 N. Y. 99, 89 iV. E. 461) ; but a bona fide purchaser for value from him, without notice, is protected: But upon a purchase of eeal estate by a coepoeation feom an OFFICEE thereof, the title is good until a^ action is brought to set aside the purchase. The taint does not attach to the title in such a case. 5. By executors and administrators. Title voidable. — An executor purchasing for himself through FIDUCIARY PURCHASES. 493 a third party, makes a title voidable at the instance of the bene- ficiaries under the will. People V. Open Board of Stockbrokers Building Co., 92 N. Y. 98, rev'g 28 Hun 274. Person not qualified as executor. — The rule against executors purchasing individually, does not apply to a person named as executor, but who has not qualified. Valentine v. Duryea, 37 Hun 437. But if he qualifies after the sale, his appointment relates back to the testator's death, and the sale to him is voidable. Matter of Silkman, 131 App. Div. Z02, 105 N. Y. Sii:>p. 873, aff'd 190 N. Y. 560. Real estate on which testator held mortgage. — An executor can take title to real estate on which his testator held a mortgage, in order to prevent foreclosure; hut he should furnish am, affidavit of tJie facts to his grantee. An executor who takes a conveyance of premises individually, in payment of a mortgage which he holds as executor, holds the land the same as if he had purchased it on the foreclosure of his mortgage, can convey the title, and is accountable only to the estate. And a mortgage on such land, made by him for the benefit of the estate, will be upheld. Yonkers Savings Bank v. Kinsley, 78 Hun 186, 28 N. Y. Supp. 925. Lands sold to pay debts. — An executor or administrator can- not be interested in the purchase of lands sold by him under order of the surrogate to pay debts. Such a sale is void by statute. 3 R. S., 104, § 27. Code of Civil Procedure, § 3774. Terwilliger v. Brown, 44 N. Y. 237, How cured. — An executor's voidable sale to himself can be cured by an accounting in the surrogate's court, to which all the beneficiaries are cited, specifically setting forth in detail the facts of such purchase. Rhodes v. Caswell, 41 App. Div. 329, 58 N". Y. Supp. 470. 494 PRACTICAL REAL ESTATE LAW. A foreclosure purchase by an executor individually was passed on the ten year statute, and on an accounting. Wiederhold v. Koehler, 174 App. Div. 139, 160 N. Y. Supp. 927. Land bought in by executors on the foreclosure of a mortgage belonging to the estate, is to be treated as personalty, and to be accounted for as such; and whether the deed be taken in the names of the executors as such, or in their^individual names, the legal title is in them, and they may sell the same, although the will confers no power to sell. Lockman v. Reilly, 95 N. Y. 64. Haberman v. Baker, 128 N. Y. 253, 28 N. E. 370. But an administrator of the estate of the owner, can purchase on foreclosure. "An administrator, as such, has no authority or control over the real estate of his intestate, and assumes no obligations in reference to it, and owes no duty to the heirs. He is not, therefore, precluded from purchasing such real estate upon a foreclosure sale, and from holding the same in his own right." HoUingsworth v. Spaulding, 54 N. Y. 636. Matter of Monroe, 142 N. Y. 484, 490, 37 N. E. 517. But the executor should convey both as executor and in- dividually with his wife. Valentine v. Belden, 20 Hun 537. The heirs of an intestate canno.t question the title of a pur- chaser from the administrator who has purchased land under such circumstances. Long V. O'Fallon, 19 How. (U. S.) 116. 6. By guardians. By a special guardian. — A special guardian's purchase from himself, even through a dummy, is presumptively fraudulent. People V. Globe Mutual Life Ins. Co., 33 Hun 393. A purchase by the wife of a special guardian was upheld, where the sale was confirmed by the court, and the testimony showed the fact that the purchaser was such wife: and where FIDUCIARY PURCHASES. 495 twenty-six years had elapsed since the sale, and all of the in- fants had long since become of age. Strauss v. Bendheim, 163 N. Y. 469, 56 N. E. 1007. By guardians ad litem.— A purchase at a partition sale by a gufirdian ad litem, is void; and has been since the Revised Statutes. Code of Civil Procedure, § 1679. O'Donoghue v. Boies, 159 N. Y. 87, 53 N. E. 537. Before the Code of Civil Procedure, a purchase at foreclosure sale was voidable only at the instance of the infants. Under Code of Civil Procedure, § 1679, however, such a purchase is void. Dugan V. Sharkey, 89 App. Div. 161, 85 N. Y. Supp. 778. By guardians in socage. — The purchase on a foreclosure sale of real estate in which an infant has an interest, by his guardian in socage, is not void under Code of Civil Procedure, § 1679; but only voidable at the instance of the infant, who can im- press a trust, or compel a conveyance to him. O'Brien v. Reformed Church, 10 App. Div. «05, 4a N. Y. Supp. 356. Synod of Reformed Church v. O'Brien, 13 Misc. 7a9, 35 N. Y. Supp. »0i9. Boyer v. East, 161 N. Y. 580, 56 N. E. 114. A purchase by a guardian in socage is voidable by the infant; and she is not obliged to show fraud or actual injury. The time for beginning an action to avoid such a purchase is within ten years under Code of Civil Procedure, § 388, and one year more, after the disability ceases, by § 296. Because an infant can maintain an action to disaffirm the purchase, his cause of action, for the purpose of applying the statute, will be deemed to ac- crue at the time when the guardian purchased, and not when "the infant attained her majority; but he must always have one year after he becomes of age, in which to disaffirm. Cahill v. Seitz, 93 App. Div. 105, 86 N. Y. Supp. 1009. In Boyer v. East, 161 N. Y. 580, 56 N. E. 114, it was held that a gvardiajn in socage who had a dower interest to protect, could purchase at a foreclosure sale. But the decision was not wholly on this ground, as the element of laches entered, largely into it. Therefore it is not ■safe to pass such a question on the ground of an interest to protect. 496 PEACTICAL EEAL ESTATE LAW. In Kullman v. Cox, 167 N. Y. 411, 60 N. E. 744, (26 App. Div. 158, 49 N. Y. Supp. 908, 42 App. Div. 620, 59 N. Y. Supp. 12), it was held that a purchase at foreclosure sale by a socage guardian who was also a tenant by the curtesy, resulted in a marketable title. But in that case, the infants were not parties, they had all become of age and had never questioned the sale, and three of the court of appeals judges vigorously dissented. A purchase by a guardian in socage is voidable, even though he be a tenant for life; and the statute does not run against the remainderman in such a case, until the determination of the life estate. Jefferson v. Bangs, 197 N. Y. 35, 90 N. E. 109. (The case of Boyer v. East was cited in the opinion here; and it would seem that the "interest to protect" theory was prac- tically overruled; as well as the Kullman v. Cox decision. Later after a retrial, Jefferson v. Bangs went again to the ap- pellate division on another point, 169 App. Div. 102, 154 N. Y. Supp. 439.) A voidable purchase by a guardmp, in socage in partition, can be cured by expressly submitting the facts to the court and obtaining a confirmation of the sale. By general guardians. — The purchase on foreclosure by the general guardian of an infant, for his individual benefit, of real property belonging to the infant, constitutes a violation of the guardian's duty; and the ward may maintain an action against him to obtain an adjudication that he holds the property simply as a trustee, and to compel an accouciting of the rents and profits thereof. Coley V. Tallman, 107 App. Div. 445, 95 N. Y. Supp. 339, aff'd 186 N. Y. 569. A guardian's voidable purchase can he cured by an accounting for the proceeds of sale in the surrogate's court, to which the infants are prop- erly cited, and who are represented by special guardiam,. A general guardiamfs purchase at a partition. sate can be disregarded if the infant was not -properly served with the summon^. In such a case the interest of the infant was not conveyed by the referee, and it 'wa^ the same as though she had not been, a party. A pur'chase by a general guardian of infant parties, ivho was a dow- eress, where the sale was confirmed by iJie court, is good. FIDUCIARY PURCHASES. 497 A purchase by a general or special guardiam, at a surrogate's sale of real estate to pay debts, is void under Code of Civil Procedure, § 27Y4. {Repealed by Act of 1914.) By testamentary guardian. — A purchase by a testamentary guardian, at a sale by order of the surrogate to pay debts, is voidable only at the election of the ward. And where the ward has suffered eighteen years to elapse after becoming of age, without questioning the transaction; during which time the title had passed into the hands of innocent third parties, he was deemed to have sanctioned it. Bostwiok V. Atkins, 3 N. Y. 53. 7. Through third party. Prohibited. — The method of affecting the transfer of the legal title through a third person, cannot avail. The rule is inflexible ; the trustee is, by his fiduciary character, incapacitated to pur- chase; and neither upright intention nor the payment of fair price, will overcome the impediment. Boerum v. Schenck, 41 N. Y. 182. "A conveyance by a person charged Avith the duties of a trustee, resulting in his own taking of title through an inter- mediary, even though the truste has a beneficial interest in the property to protect, is voidable at the election of any person interested in the trust estate ; and a title based upon the transac- tion is not marketable because of the potential invalidity." Weintraub v. Siegel, 57 Misc. 246, 109 N. Y. Supp. ai5, rev'd on the facts only, 133 App. Div. 617. Where the third party reconveys at once, or within a brief period, to the executor or trustee, the presumption is that he was a tool or cover. And when such a defect is apparent on the face of the record, a third person subsequently buying, will be affected with notice and cannot buy the land. Toole V. MeKiernan, 48 Super. (16 J. & S.) 163. A title was held unmarketable, where a trustee purchased in- dividually through a third party, who held the title four months before conveying back to the trustee. Weil V. Eadley, 31 App. Div. 25, 5S N. Y. Supp. 398, aff'd 163 N. Y. 682. 32 498 PRACTICAL REAL ESTATE LAW. 8. By trustees. A trustee purchasing for himself, makes a voidable title, * ' upon a rule of morality and policy, having reference to human infirmity, which forbids that a man should act as vendor for others and as purchaser for himself of the same subject-matter, and at the same time. ' ' No matter if the trustee acted from good motives, or if the sale was fairly conducted, and the price ob- tained full and ample; yet the courts will order a resale, if the cestuis que trustent are not satisfied with it. And they need not show actual injury. Johnson v. Bennett, 39 Barb. 337. * Davoue v. Fanning, 2 Johns. Ch. 252. Welch V. Woodruff, 3 N. Y. Supp. 632, 635. Purchase enures to benefit of estate. — When a trustee pur- chases an outstanding tax title, the purchase enures to the bene- fit of the estate. Title never vested in the purchaser as against his co-owners. It was a purchase for them, not against them. Gilman v. Healy, 49 Hun 274, 1 N. Y. Supp. 902. May mortgage property purchased. — ^A testamentary trustee improperly purchasing real estate with trust moneys, takes good title thereto ; and he has the power to mortgage it independently of the will; and upon foreclosure of the mortgage, the trust bene- ficiaries are not necessary parties. McLean v. Ladd, 66 Hun 341, 21 N. Y. Supp. 196. A trustee may purchase from his cestui que trust, if he is sui juris. There is no rule of law against this. The cestui affirms the transaction as soon as it is made; and the equitable rule against a trustee dealing with trust property, does not apply. Graves v. Waterman, 4 Hun 687, aff'd •63 N. Y. 657, rev'd without opinion 63 N. Y. 658. The purchase by a trustee for infant remaindermen, individu- ally, when he owned a one-half interest in the property which he was entitled to protect; and the sale was duly confirmed by the court, was held good. In this case a full presentation of the facts, was made to the court. -Corbin v. Baker7 167 N. Y. 128, 60 N. E. 332. FIDUCIAEY PURCHASES. 499 9. Through wife. Voidable. — On account of the peculiar and sacredly confi- dential relations of husband and wife, and independently of the Married Women's Acts, a purchase by a wife is considered the same as a purchase by the husband; and is just as voidable. Taylor v. Klein, 47 App. Div. 343, 63 N. Y. Supp. 4, aff'd 170 N. Y. 571. Good, if at auction sale, in good faith. — It has been held, how- ever that an executor 's wife can purchase real estate from him at an auction sale, if the purchase is made in good faith, for an adequate consideration, and paid for out of her own estate. Miller v. Weinstein, 5a App. Div. 533, 65 N. Y. Supp. 387, aff'd 166 N. Y. 608. And that this is so even though the sale was private, if the executor accounted for the proceeds. Wyeth V. Sorehan, 38 Misc. 173, 77 N. Y. Supp. »63. But these cases should not be followed in practice; not only because the principle ma/y, be unsound, but also because the facts are not of rec- ord and their proof is difficult. The rule does not apply to a father and son. The only re- lationship which makes such a transaction voidable, is that of husband and wife. Lingke v. Wilkinson, 57 N. Y. 445. On foreclosure of first mortgage, where husband holds second mortgage. — ^A purchase by a wife on the foreclosure of a first mortgage, of the premises on which her husband holds a second mortgage, is good. Potter V. Saohs, 45 App. Div. 454, 61 N. Y. Supp. 436. And a moetgage by a teustee to his own wife^ under a power to •mortgage, is good, in the absence of notice of fraud; evem, though she forecloses, buys in, and then sells at an enormous profit. Sale by husband as assignee for benefit of creditors. — A pur- chase by a wife, at a sale made by her husband as assignee for the benefit of creditors, makes the title unmarketable; because the purchase may have been, in substance, a purchase by him- self. Wohlfarth v. Chamberlain, 14 Daly 178, 6 St. R. 207. 500 PEAGTICAL REAL ESTATE LAW. FILING. (See Public Officers.) FINAL JUDGMENT. (See Judgment.) FINDER'S TITLE. (See Personal Property.) FINES. (See Real Estate.) FIRE. 501 1. In general. Z. Fire insurance. FIRE. (See Lease.) 1. In general. Between date of contract and closing. — When the building is destroyed by fire between the date of the contract and the clos- ing day, the purchaser can refuse to take. Wicks V. Bowman, 5 Daly 335. And a fire seriously damaging buildings between the date of contract and closing, excuses the vendee. Listman v. Hickey, 65 Hun 8, 19 N. Y. Supp. 880, aff'd 143 N. Y. 630. But unless otherwise provided in the contract, a fixe loss pend- ing consummation of contract, if the vendee has gone into pos- session and thus accepted the title as satisfactory, must fall on the vendee. SeweU V. Underbill, 197 N. Y. 1«8, 90 N. E. 430, affg 127 App. Div. 92, 111 N". Y. Supp. 85. Though a vendee does not break his contract by refusing to take title after a fire, and is strictly within his legal rights when he so refuses; yet in an action for specific performance of the contract in equity, the court may direct him to perform, upon compensating him for the loss of the building. Listman v. Hickey, 65 Hun 8, 19 N. Y. Supp. 880, aff'd 143 N. Y. 630. If the fire damage is slight, compensation will be allowed; and the purchaser will be compelled to take. Aspinwald v. Balch, 7 Daly 200, 4 Abb. N. C. 193. Mutual Life Ins. Co. v. Balch, 4 Abb. N. C. 200. Option to purchase. — Effect of a fire on a lease with an option to purchase. Trumbull v. Bombard, 171 App. Div. 70O, 157 N. Y. Supp. 794. 502 PRACTICAL EEAL ESTATE LAW. Unearned rent, paid in advance, cannot be recovered on a de- struction by fire. Werner v. Padula, 49 App. Div. 135, 63 N. Y. Supp. 68, aff'd 167 N. Y. 611. On a judicial sale, the purchaser does not get title until the deed is delivered; and if the building burns after the sale and before closing, the purchaser will not be compelled to take. Harrigan v. Golden, 41 App. Div. 433, 58 N. Y. Supp. 726. Fire after auction sale and before closing, releives the pur- chaser. Aspinwall v. Balch, 7 Daly 200, 4 Abb. N. C. 193. See also Cheney \. Woodruff, 45 N. Y. 98; Benjamin v. Saratoga County Mutual Fire Ins. Co., 17 N; Y. 415. Agreement by mortgagor to keep buildings insured. — ^For the construction of an agreement hy a mortgagor to keep buildinge insured for a mortgagee, see Real Prop. Law, § 271, subd. 2. Fire loss on a mokt&age. — The money paid to the mortgagee, can he advanced to the mortgagor to erect a new building, without a con- tinuation of the searches, under the clause in the mortgage " without affecting the lien of the mortgage secured thereby." The mortgagee should be sure, however, that any material purchased, or fixtures in- stalled, are not covered by conditional bills of sale. 2. Fire insurance. The holder of a mortgage has a fire insurable interest in the mortgaged premises. And the consent of the insurers to the as- signment of the policy, constitutes a contract with the mort- gagee, by which he becomes insured. And no act of the owners can defeat the rghts of the assignee under the policy. Tillou v. Kingston Mutual Ins. Co., 7 Barb. 570, mod. 5 N. Y. 405. Notice and proof of loss. — A mortgagee is not required to give notice and proof of loss. Heilbrunn v. German Alliance Ins. Co., 140 App. Div. 557, 125 N. Y. Supp. 374, aff'd 202 N. Y. 610, 95 N. E. 823. But under the usual mortgagee clause, that the loss is pay- able to the mortgagee as interest may appear, he is a party in- FIRE. 503 sured; and can furnish, proof of loss and collect it from the in- surance company. McDowell V. St. Paul Fire & Marine Ins. Co., 145 App. Div. 724, 130 N. Y. Supp. 294, afl'd 207 N. Y. 482. A mortgagee clause in a fire insurance policy, is not essential to enable the mortgagee to recover a fire loss. The agreement by the mortgagor to insure the premises for the benefit of the mortgagee, means that the mortgagee can take all the insur- ance up to the amount of his mortgage. Wattengel v. Sclmltz, 11 Misc. 165, 3a N. Y. Supp. 91. {But, practically, a mortgagee must foreclose and join the insurance company as a defendant, in order to recover the money in such a case.) Assignment by mortgagee. — ^A fire insurance policy cannot be transferred by the insured without the consent of the insurance company. A mortgagee who assigns his mortgage, cannot as- sign his insurance as mortgagee, without such consent. Weinbea-ger v. Agricultural Ins. Co. of Watertown, 80 N. J. L. 202, 76 A. 343. Failure to notify the insurance company of a change of owner- ship of the property, avoids the policy. Hence in such a case, where the company was bound to the mortgagee, and it paid the loss, then took an assignment of the mortgage and foreclosed it; held, in that foreclosure, that the owner of the land was not en- titled to have the insurance money applied in satisfaction of the mortgage. Springfield Fire and Marine Ins. Co. v. Allen, 43 N. Y. 389. * FIXTURES. Household fixtures. — Carpets, curtain poles and gas fixtures, are not fixtures. Whether or not ranges, hot water boilers, sinks and washtubs are fixtures, as between the holder of a real estate mortgage, and the holder of a chattel mortgage, will de- pend on how they are attached to the house. Manning v. Ogden, 70 Hun 399, 24 N. Y. Supp. 70. *See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 3, p. 33, Bk. 4, pp. 370, 615, Bk. 11, p. 511, Bk. 16, p. 10, Bk. 22, p. 536, Bk. 38, pp. 269, 300. 504 PRACTICAL EEAL ESTATE LAW. Gas fixtures screwed to gas pipes, and mirrors hung on hooks, are not fixtures. McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38. Gas fixtures are not so permanently attached to the building, that they will pass by a conveyance of the building. Shaw V. Lenke, 1 Daly 487. Ranges and portable heaters are not fixtures, but only house- hold goods. Kerby v. Olapp, 15 App. Dlv. 37, 44 N. Y. Supp. 116. Fences erected by a third person on a farm, under an agree- ment that the builder might remove them at will, do not pass to a bona fide purchaser of the farm without notice. But the covenant of seizin is broken, if the grantor does not own such things af- fixed to the freehold as would pass by a conveyance of the land if he owned them, such as fences. Mott V. Palmer, 1 N. Y. 564. When fixtures are removed after the contract of sale, and be- fore closing title, the refusal of the vendee to take, is not a breach of the contract, as he is entitled to the property in the condition in which it was when he bargained for it; but an action for the specific performance of the contract may be maintained in equity, because therein compensation may be allowed for the fixtures removed. Smyth V. Stierges, lOS N. Y. 495, 15 N. E. 544. FOLIOING. (See Judgment.) FORCIBLE ENTRY. (See Ejectment.) FORECLOSURE. 50r> * FORECLOSURE. (See State; Tender.) 1. In general. 2. Production of bond. 3. Condemnation. 4. Death of parties. 5. Defects. 6. Defenses. 7. Deficiency judgment. 8. Dower right. 9. Dummies. 10. Final judgment. 11. Guardian of infants. 12. Sale in inverse order of alienation. 13. Of mortgage on lease. 14. Of loan commissioners' mortgages. 15. lost records. 16. Mortgagee in possession. 17. Notice of sale. 18. Parties. 19. Pleading. 20. Practice. 21. Proofs. 22. Receiver. 23. Redemption. 24. Sale. 25. Second nuxrtgages. 26. Statutory or by advertisement. 27. Statutes. 28. Strict foreclosure. 29. Superior interests. 30. Effect on tenant. 31. Terms of sale. 1. In general. Jurisdiction of United States courts. — ^A foreclosure of a mort- gage on lands in this state, may be brought in a United States court by reason of diversity of citizenship. McLaughlin v. McLaughlin E. E. Co., 162 App. Div. 644, 147 N. Y. Supp. 959. * See also Thomas on Mortgages (3d ed.) ; Fiero on Special Actions (3d ed.) and Supplement, 1919; Fiero on Special Proceedings (3d ed.) and Supplement, 1919; Bliss' Code of Civil Proceduire (6th ed.) and Supplement, 1919; Parsons' Code of Civil Procedure. 506 PRACTICAL REAL ESTATE LAW. Person interested in equity, paying taxes.— Any person in- terested in the equity of a building, the owner of which fails or refuses to pay the taxes, upon paying such taxes to protect his security, is entitled to be reimbursed, on foreclosure, in priority over all claimants except those who have paid similar taxes, Leavitt v. Waldemar C!o., 88 Misc. 285, 151 N. Y. Supp. 833. A purchaser at the sale can insist upon a good title, even prior to the mortgage; and the titte is not defective because of the failure to record an assignment of the mortgage. Fryer v. RockefeUer, 63 N. Y. 268. Presumption of redemption after twenty years. — When there has been a foreclosure and sale, not followed by a conveyance to the purchaser, or any recognition of the mortgage by the mortgage debtor, it will be presumed after twenty years, that the land has been redeemed from the sale. Barnard v. Onderdonk, 98 N. Y. 158. The referee's deed can be given at any time within twenty years from the sale, without other order of the court than the foreclosure decree; because there is no presumption of the pay- ment of the debt, or of the satisfaction of the decree, within that time. Catlin V. Kea, 35 Misc. 535, 71 N. Y. Supp. 1117. Effect. — When the title to the mortgaged premises remains in the mortgagor, a foreclosure and sale in practical effect, operates to extinguish the defeasance; and the purchaser takes title as of the time when the mortgage lien was created. Emble- ments grown since the mortgage, go to the purchaser. Batterman v. Albright, 122 N. Y. 484, 25 N. E. 856. The joining of the record owner of a second mortgage, cuts off that mortgage, although there is on record an assignment of it from an unrecorded assignee, reciting the prior assignment. People's Trust Co. v. Tonkonogy, 144 App. Div. 333, 128 N. Y. Supp. 1055. A lien interest cut off by foreclosure, is, in effect, discharged; and cannot be canceled as a cloud on title by peremptory man- damus. People ex rel. Gordon v. Butler, 135 App. Div. 222, 120 N. Y. Supp. 302. FORECLOSURE. 507 The pending of a partition action, to which a mortgagee of the whole property is a party, is no bar to the foreclosure of the mortgage. Harlem Savings Bank v. Larkin, 156 App. Div. 666, 143 N. Y. Supp. 122, app. dis. S09 N. Y. 564, 103 N. E. 1134. Bond and mortgage in possession of defendant. — A foreclosure was defeated, by the fact that the bond and mortgage was in the possession of the defendant, thus creating the presumption that the debt had been canceled, either by payment or gift. Hall V. O'Brien, 160 App. Div. 851,' 146 N. Y. Supp. 551, aff'd 218 N. Y. 50, 113 N. E. 569. A JUDGME!S^T OF FORECLOSURE AND SALE CAN BE RELEASED BY THE PLAINTIFF, where no sale has been made; because he has control of the judgment. But such a release does not cut off or affect the rights of the subsequent lienors who are parties to the action. A bondholder may foreclose a trust mortgage, if the trustee refuses to do so. Ettlinger v. Persian & C. Rug Oa., 143 N. Y. 189, 3© N. E. 1055. In proceeding for voluntary dissolution of corporation. — The foreclosure of a prior mortgage cannot be restrained in a pro- ceeding for the voluntary dissolution of a corporation. Only ac- tions to recover a sum of money can be so restrained. Matter of Tarrytown, W. P. & M. R. Co., 133 App. Div. 297, 117 N. Y. Supp. 695. A foreclosure sale and deed passes the equitable title of the mortgagors, as well as the legal title. If it appears that a con- veyance was intended to extend to the center of a road, although by its terms it carried only to the side, the foreclosure of a mortgage, made by the grantee in that deed, will pass such equitable title to the purchaser. Smyth V. Rowe, 33 Hun 422, aff'd 98 N. Y. 665. Estate vested in purchaser; validity of referee's deed. — The statute provides that the deed given in pursuance of a sale on foreclosure, shall vest in the purchaser "the same estate, and no other, that would have vested in the mortgagee if the equity of redemption had been foreclosed;" and further declares that 508 PRACTICAL REAL ESTATE LAW. the referee's deed shall be as valid as if executed by the mort- gagor and mortgagee. These provisions construed in Christ Protestant Episcopal Church v. Mack, 93 N. Y. 488, 491, to cut off an easement held by a defendant, although the equity owner purchased. Technical default. — The action is equitable; and the court can and will refuse the decree upon a mere technical default, such as the failure to pay taxes on the very day when they be- come due; although the mortgage provides for an election by the mortgagee to have the principal due on default in the pay- ment of taxes as soon as due. Germania Life Ins. Co. v. Potter, 134 App. Div. 814, 109 N. Y. Supp. 435, rev'g 57 Misc. S04, 107 N. Y. Supp. 912. Where the land extends across the state line into another state, the court may decree a sale of the land; and, as its judg- ment may be incapable of execution over the state line, it may re- quire the mortgagor to execute a conveyance to the purchaser, in order that the whole security offered by the mortgage, should so far as possible, be made effective.- Union Trust Oo. v. Olnistead, lOa N. Y. 739, 7 N. E. 832, citing MuUer v. Dows, 94 U. S. 444 to 450. Service out of state. — A deficiency judgment cannot be obtained upon actual service out of the state under a publication order; because jurisdiction over the property only, not of the person can be obtained in this way. Purchase defeasible until acceptance.— A bid at a master's sale, its acceptance by the master, and the payment of a per- centage upon the purchase money, work no change in the title, even in equity. The purchase is inchoate and defeasible until the acceptance of the title by the purchaser. Until the deed is delivered, the equity owner can collect the rent. strong V. Dollner, 4 Super. (2 Sandf.) 444. The owner of the equity purchasing under an execution sale on a judgment antedating the mortgage, cannot enjoin the fore- closure sale before the redemption period has expired. New York Shot & Lead Co. v. Gary, 10 Abb. Pr. 44, 20 How. Pr. 444. FORECLOSURE. 509 The foreclosure sale of a renewed lease, is authorized under a mortgage given on the original lease. A reversal on appeal will not affect the purchaser's title on foreclosure. A suit pending between the same parties to set aside the mortgage, does not af- fect the purchaser's title, because all the parties are bound by the judgment in foreclosure. Holden v. Sackett, la Abb. Pr. 473. The fact that the mortgagee has acquired title to the mort- gaged premises, does not prevent an action by him to foreclose the lien on his own lands, if the conveyance to him provided that the mortgage was not to merge in the fee. In such a case, fore- § 31, describes the plaintiffs as "Commissioners of the United States deposit fund," instead of "Commissioners for loaning certain moneys of the United States," the sale is void. Thompson v. Comm'rs., etc., 79 N. Y. 54. A sale by one commissioner, the term of the other having ex- pired, and no successor having been appointed, is good. Pell V. Ulmar, 18 N. Y. 139, rev'g ai Barb. 500. A sale by one commissioner, in the absence of his associate, is irregular and void, and no title passes thereunder to the pur- chaser; nor does the deed operate as an assignment of the mort- gage. Olmsted v. Elder, 5 N. Y. 144. Powell V. Tuttle, 3 N. Y. 396. Without proper notice. — ^A sale made by loan officers without giving the proper notice, is invalid; and the purchaser is bound to see that the special authority given to the commissioners, was pursued. Denning v. Smith, 3 Johns. Ch. 333, 344. Requisites of contract of sale. — No contract of sale by loan commissioners is valid, unless it has the written approval of the state comptroller. L. 1898, ch. 360, § 6. The contract must be executed by both commissioners, unless only one is in the county, or only one is able and qualified to act. Specific performance cannot be had against them, because the title is in the state. Switzer v. Commissioners for Loaning Moneys, 134 App. Div. 487, 119 K Y. Supp. 383. 522 PRACTICAL EEAL ESTATE LAW. 15. Lost records. Where the judgment roll was missing, the county clerk's register showed only the lis pendens, and the sheriff's deed con- tained the usual recitals, the title was held to be marketable on proofs of possession for forty-one years without family history. Messinger v. Foster, 115 App. Div. 689, 101 N. Y. Supp. 387. The failure of the county clerk to actually file an order for the service of a summons by publication, with the papers upon which it was granted, when the same were duly delivered to him for filing, does not invalidate the service; and furnishes no ground for the plaintiff, who has entered into a contract' for the purchase of the real estate affected, to refuse to accept the deed on the ground that the defendant's title is defective be- cuse of such alleged void foreclosure. Such papers may be filed nunc pro tunc to correct the record, the court having ob- tained jurisdiction. Fink T. Walloch, 109 App. Div. 718, 96 N. Y. Supp. 543. 16. Mortagagee in possession. Upon the failure to serve subordinate lienors, the purchaser becomes a mortgagee in possession as to them, and may refore- close against them; and he need only to allege that they assert an interest in the premises under a claim that they were not served in the prior action. Vought V. Levin, 143 App. Div. 633, 127 N. Y. Supp. 479. A foreclosure action brought by a mortgagee who has been in adverse possession more than twenty years, is such an acknowledgment that the mortgagee claims possession only in his character as such, as to revive the mortgagor's right to re- deem. Calkins v. Isbell, 20 N. Y. 147, 149. 17. Notice of sale. The failure to publish a notice of a postponement of a sale, is rORECLOSUEE. 523 an irregularity only; and after confirmation of the referee's re- port of sale, is no ground for rejection of title, Bechstein v. Schultz, 120 N. Y. 168, 24 N. E. 388. To reject purchaser must show that notice was not pub- lished. — The purchaser must take title before the report of sale containing the proofs of publication of sale is filed; and he can- not object to the absence of such proofs from the record. In order to reject, he or his subsequent grantee must show that the notice of sale was not in fact published. The law does not re- quire the referee to file such reports at all. Farrell v. Noel, 17 App. Div. 219, 45 N. Y. Supp. 207. Catlin V. Rea, 35 Misc. 535, 71 N. Y. Supp. 1117. E.EFEEEE OUGHT TO FILE PROOFS OP PUBLICATION. — But the referee ought to file such proofs for his own protection. As a matter of fact, the plaintiff's attorney attends to the publishing of the notice of sale, and the referee (in practice) has nothing to do with it; and it is the general custom for the same attorney to produce the publishers' affi- davits of publication on closing for the inspection of the purchaser's attorney. Note the contrast in a partition auction, where Code of Civil Procedure, § 1577, requires the referee to file his report before clos- ing; and the purchaser can insist upon this being done. Description of property. — The published notice of sale need not contain the same description as the judgment. It is only necessary to describe the property with reasonable certainty. (To save expense of publication. Code of Civil Procedure, §§ 1435, 1678.) Wright V. Ackerman, 97 Misc. 163, 162 N. Y. Supp. 726. *18. Parties. One to whom the owner has contracted to seU the premises, is a proper, thou^ not a necessary party. Crooke v. O'Higgins, 14 How. Pr. 154. Assignee of bankrupt mortgagor. — When after lis pendens, the mortgagor is declared a bankrupt, and assigns his property to • See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 2, pp. 19, 667, Bk. 7, p. 62, Bk. 3'0l, p. 1155. 524 PRACTICAL EEAL ESTATE LAW. the general assignee in bankruptcy, such assignee need not be made a party, because he is barred by the lis pendens. Cleveland v. Boerum, 2-3 Barb. 201, 3 Abb. Pr. 294, aff'd 27 Barb. 252, 24 N. Y. 613. Daly V. Burchell, 13 Abb. Pr. N. S. 264. But chancellor Walworth held in 1842, in Anonymous, 10 Paige 20, that such assignee was not in the position of a new purchaser pendente lite, because the equity of redemption was cast upon him by operation of law. Trustee of bankrupt second moetgagee. — Where a petition in bankruptcy is made against a second mortgagee before the lis pendens is filed, but no trustee has been appointed, no ons can be joined to rep- resent the bankruptcy ; but care must be taken to look out for the ap- poimtment of one before judgment; and if one is so appointed, he must be brought in. The action cam/wot be held up pending the appointment of a trustee in bankruptcy. The bankrupt should be joined, but not the creditors. The general equitable rule that the cestui que trustent as well as the trustees, must be joined, applies to foreclosures; but gen- eral assignments and bankruptcies are exceptions to the rule; for there the trustees represent the creditors, and they are bound. ' Landon v. Townshend, 112 N. Y. 93, 19 N. E. 424. A TE0STBB EOE CEEDiTOES represents them, and it is not necessary to make the creditors parties. A TEUST MOETGAGE EOE THE BENEFIT OF CEEDITOES^ Can be Cut off by joining the trustee, without joining the creditors. An assignee for creditors joined individually only, and not as assignee, is bound by the judgment, if he had no other interest. Wagner v. Hodge, 34 Hun 524, aff'd 98 N. Y. 654. Equity ownee a dummy. — No attention need be paid to rumors that the equity owner is a dummy. If the STATE su:]^eintendent of BANKS is in possession of the as- sets of a second mortgagee, said superintendent must be joined. Land purchased by executors subsequent to mortgage. — Upon the foreclosure of a mortgage on land purchased by executors subsequent to the mortgage, the devisees or heirs at law are not FORECLOSURE. 525 necessary parties, but only the executors and their grantees; because the executors hold the land as personalty. I McCarty v. Downes, 161 App. Div. 667, 146; N. Y. Supp. 973. The administrator of a deceased mortgagor is not a necessary party within three years. Nor do the general creditors of a deceased mortgagor who left insufficient persdnal assets to pay his debts, have any such lien as makes them necessary parties to a foreclosure. ' Heidgerd v. Reis, 135 App. Biv. 414, 119 N. Y. Supp. 921. An assignor for collateral security can foreclose, if he joins the assignee as a defendant. Simson v. Satterlee, «■ Hvm 305, afl'd 64 N. Y. 657. Winegard v. Fanning, 76 Hun 170, 27 N. Y. Supp. 566. Persons jointly interested must be joined as plaintiffs or de- fendants. The omission of a joint debtor is fatal. All joint junior incumbrancers must be joined as defendants; and all parties interested, must be joined either as plaintiffs or defend- ants. Hilliard on Mortgages, v. 2, p. 139. Jones on Mortgages, § 1368. Slocum V. Hooker, 13 Barb. 536. A foreclosure against executors who have only a discretionary power of sale, does not give good title, unless the heirs at law or devisees are parties. Noonan v. Brennemann, 54 Super. (22 J. & S.) 337. One claiming adversely to mortgagor. — ' ' So far as mere legal rights are concerned, upon a bill of foreclosure, the only proper parties to the suit are the mortgagor and mortgagee, and those who have acquired rights or interests under them subsequent to the mortgage. And the mortgagee has no right to make one who claims adversely to the title of the mortgagor, and prior to the mortgage, a party defendant, for the purpose of trying the validity of his adverse claim of title in this court. ' ' Eagle Fire Co. t. Lent, 6 Paige 635, 637. Corning v. Smith, 6 N. Y. 82. 526 PRACTICAL REAL ESTATE LAW. Trust beneficiaries are necessary parties, as a general rule. Hodges V. Walker, 76 App. Div. 305, 7» N. Y. Supp. 447. While it is not altogether clear that the beneficiaries of express trusts are necessary parties, it is customary to make them so; and unless they are brought in, the title is doubtful. Contingent remaindermen are ordinarily not necessary. New York Security & Trust Co. v. Schoenberg, 87 App. Div. 2.62, 84 N. Y. Supp. 359, aff'd 177 N. Y. 556. Vested remaindermen are necessary parties. Leggett V. Mutual Life Ins. Co., 64 Barb. 23, rev'd on ano. ground 53 N. Y. 394. It is not necessary to make tlie holders of future and con- tingent interests parties; but it is sufficient if the person who has the first vested estate of inheritance, and all other persons having or claiming prior rights or interests, are brought before the court. Nodine v. Greenfield, 7 Paige 544. Where the title is in a trustee, the vested remaindermen must be made parties; but contingent remaindermen need not be; and the same rule applies where there is equitable conversion. United States Trust Co. v. Roohe, 116 N. Y. 120, 22 N. E. 265. , The rule is that the trustee does not represent the remaindermen, and they must be made parties. If the remaindermen cannot be determined until after the termination of the trust, then the presumptive or appar- ent remaindermen must be joined. It is only necessary to bring in the holder of the present estate, and also the remaindermen now in being who would take if the prior estate were to terminate now. (Nodine v. Greenfield, 1 Paige 544.) Con- iingent remaindermen are only necessary in partition. Possible ap- pointees under a power of appointment by a possible will, are not neces- sary parties. When the title is in a trustee with equitable conversion, the remaindermen have no title to the land as land; but only to the proceeds of sale ; and the trustee alone is a necessary party. Boebmcke v. McKeon, 119 App. Div. 30, 103 N. Y. Supp. 930. Mutual Life Ins. Co. v. Woods, 4 N. Y. Supp. 133, aff'd 121 N. Y. 302, 24 N. E. 602. FORECLOSURE. 527 Trustee in official capacity. — Foreclosure does not cut off a second mortgage held by- a trustee, unless the trustee is joined in his oflRcial capacity. Either allegation must be made in the complaint, of his representative character, or he must appear or answer as such, or such character must appear in some other way on the face of the proceedings, if he is sued individually. Landon v. Townshend, lia N. Y. 93, 19 N. E. 424, 129 N. Y. 166, 29 N. E. 71. McGuckin v. MilBank, 83 Hun 473, 31 N. Y. Supp. 1049, aff'd 152 N. Y. 297, 46 N. E. 490. Foreign receivers. — Where a junior mortgage is held by a foreign corporation for which permanent receivers have been appointed in the foreign state, such receivers should be joined. If not, the title is unmarketable, even though an ancillary re- ceiver appointed here, is joined; the mortgage being at the time of the appointment, in the possession of the foreign receivers. Ely V. Matthews, 58 Misc. 365, 110 N. Y. Supp. 1102. Judgment ceeditoes of subsbqttent moetgageb. — When an equity owv^r who luas not served, conveys after lis pendens filed to another defendant, a subsequent mortgagee who was served, judgment creditors of the latter must he brought in by amendment. The suit cuts off a judgment creditor who is made a party, al- though the equity owner is not served. Johnson v. Putnam Foundry & Machine Co., 167 App. Div. 99, 152 N. Y. Supp. 792. A mortgage cannot be foreclosed by the next of kin of a de- cedent; because on the death of the mortgagee, by 2 R. S., 82, § 6, the mortgage goes to the personal representatives. And if such an action is begun by the next of kin, his subsequent appoint- ment as administrator cannot uphold the action. Gatfield v. Hanson, 57 How. Pr. 331. When two or more mortgages held by different parties, are contemporary and equal liens upon the premises, the commence- ment of a foreclosure by the owner of any of the mortgages as sole plaintiff, will render the remaining mortgagees necessary defendants in the action. This rule is based on the fact that courts regard the owners of such mortgages the same as they 528 PEACTICAL REAL ESTATE LAW. would the owners of a single mortgage given to secure in sever- alty the respective amounts of the different contemporary mort- gages. Wiltsie on Mortgage Foreclosure (3d ed.), S 304. When grantees of other property subsequent to the mortgage foreclosed, have the right to enforce restrictions on the fore closed land, the owners and mortgagees of this other property must he joined in order to cut off the restrictions. Korn V. Campbell, 19a N. Y. 490, 85 N. E. «87. Equitable "Life Assux. Soc. v. Brennan, 148 N. Y. 661, 43 N. E. 173. Where the title was in a sole trustee who has eenoxtnced^ but the trust has not termiruded, the complaint should so state these facts so that the court may, if it sees fit, appoint someone to represent the trust estate. The plaintiff has no standing to asJc for the appoint- ment of a new trustee; and his complaint is insufficient if it fails to state the above facts. When the ownee of a second mortgage dies and his administrator forecloses and takes title, upon the foreclosure of the first mortgage, the administrator and heirs at law must he made parties j hut the wives of the male heirs need not he joined, as their dower rights do not attach. A SECOND MORTGAGEE IS CUT OFF BY JOINING HIS ASSIGNEE FOR CRED- ITORS, without joimng the assignor. A BANKRUPT OWNER m,uM he made a party as well as the receiver in bankruptcy; and unless he is made a party defendant, judgments docketed against him after the filing of the lis pendens, are not cut of. Where the will of the equity owner devises the premises in trust, and there is equitable conversion, the executors are neces- sary parties defendant; but the beneficiaries are not. Salisbury v. Slade, 160 N. Y. 278, 54 N. E. 741. Morse V. Morse, 85 N. Y. 53. Hubbard v. Housley, 43 App. Div. 129, 59 N. Y. Supp. 392, aff'd 160 N. Y. 688. 19. Pleading. Should show no prior proceedings or particulars of such pro- ceedings. — A bill of foreclosure should contain a distinct aver- ment, in terms of the statute, that no proceedings have been had at law for the recovery of the debt secured by the mortgage or any part thereof; or, if such proceedings have been instituted, the bill should state what such proceedings were, and against FORECLOSURE. 529 whom instituted; and it should show that the proceedings at law have heen discontinued, or that the remedy at law has been exhausted by the return of the execution unsatisfied. Pattison v. Powers, 4 Paige 549. But the allegation that no other action has been brought, though necessary to be stated under Code of Civil Procedure, § 1629, is not required to be proven on default. Riesgo V. Glengariffe Realty Co., 116 App. Div. 414, 101 N. Y. Supp. 832, afl'd 194 N. Y. 600. The objection that the complaint shows an action on the bond and one for foreclosure joined in one action, cannot be taken by motion to strike out parts of the complaint; but must be taken advantage of by demurrer. City Real Estate Co. v. King, 122 App. Div. 556, 107 N. Y. Supp. 535. An answer by a defendant equity owner, that she did not know of the conveyance to her, etc., is not material; and judg- ment will be granted on the pleadings. Towner v. Cary, 103 Misc. 93, 169 N. Y. Supp. 817. 20. Practice. Prior mortgagee can be brought in. — A defendant, as well as a plaintiff, can have a prior mortgagee brought in to determine the amount due on a prior mortgage. Quinlan v. Olson Construction Co., 153 App. Div. 140, 138 N. Y. Supp. 216. There is no limit of time for docketing a deficiency judgment, although it may not be a lien on real estate after ten years. Brown v. Faile, 112 App. Div. 302, 98 N. Y. Supp. 420. A DBFiciENCT JUDGMENT CAN BE DOCKETED against a hoTidsman who has died after interlocutory judgment, under Oode of Civil Procedure, % 1210, in conjunction with § 763. But such a, judgment is not a lien on real estate. See § 1210. Notice of sale must be served, when demanded in the notice of appearance. A copy of the printed notice may be served, but the statutory publication alone is not sufficient. If this is not done a resale can be had. Eidlitz V. Doctor, 24 Misc. 209, 53 N. Y. Supp. 525. 34 530 PRACTICAL REAL ESTATE LAW. The defendants are entitled to notice of sale, In this case the defendant had waived all except notice of sale. Collins V. MeArtliur, 32 Misc. 538, fi? N. Y. Supp. 460, rev'd 59 App. Div. 626. An appeaeance and waiver oe all " except notice of fore- closure AND SALE," means that notice of the entry of the judgment of foreclosure and sale must be served on the attorney. The defendants who have appeared and demanded service of aU papers, are entitled to eight days notice of application for judgment, under Code of Civil Procedure, § 1219, subd. 1. Judg- ment was refused without this or a waiver. Selinger v. The G. C, Inc., 81 Misc. 343, 142 N. Y. Supp. 194. Several mortgages can be foreclosed in one action. — Any num- ber of mortgages held by the same party, on property owned by one person, no matter when or by whom or to whom originally made, can be foreclosed in one action. Technically, the defendants can move to sever the actions; but such a course would not be to their advantage, for it would mean extra bills of costs. The foreclosure of two or more mortgages may be joined as separate causes of action in one suit, when they arise out of the same transaction. Two or more mortgages given at the same time as parts of the same agreement, though upon different parcels of land, ' ' would arise out of the same transaction. ' ' Thomas on Mortgages (3d ed.), § 829. Two causes of action to foreclose two mortgages upon the same real estate, both of which are held by one party, and are past due but not given at the same time nor by the same parties, are properly joined in the same complaint, where no relief for deficiency is sought. Morrissey v. Leddy, 11 C5v. Proc. R. 438. A reforeclosure is advisable, rather than a strict fore- closure, to cut off a subsequent mortgagee omitted from the first fore- closure; because the plaintiff is not properly entitled to a strict fore- closure judgment. The judgment may be amended without notice to the parties in default who have been regularly served. At any rate, such an amendment cannot be attacked collaterally. Brown v. Beckmann, 53 App. Div. 257, 65 N. Y. Supp. 740. FORECLOSUEE. 531 Brought in another county. — It is no objection to the regu- larity of the proceedings in a foreclosure suit, that the place of trial was in a county other than that in which the mortgaged premises are situated, where there has been no motion or de- mand made to change the place first selected. In such a case, after judgment and a sale of part of the property, a purchaser cannot raise the objection that the action was not tried in the county where the mortgaged premises are situated. Code of Civil Procedure, § 9S5. Code of Procedure, § 126. Marsh v. Lowry, 26 Barb. 197, 16 How. Pr. 41. The action may be maintained by foreign executors in this state, without taking out letters testamentary here. Averill v. Taylor, 5 How. Pr. 476. A FOKECLosuEE BY ONE OF TWO EXECUTORS^ is good. The defend- ants are hound hy the judgment; and it is not the purchaser's business to trace the proceeds of sale. The referee to compute only need not take an oath of office, unless required to do so by the order appointing him. McGiOwan v. Newman, 4 Abb. N. C. 80, 54 How. Pr. 458. A foreclosure may be stopped by an owner of the equity who did not make the mortgage (i. e. purchased subject to it), de- manding an assignment of the mortgage, instead of taking a satisfaction piece. Stewart v. Smith, 29 Misc. 235, 60 N. Y. Supp. 329. A junior mortgagee can also demand an assignment. Twombly v. Cassidy, 82 N. Y. 155. An order that upon the coming in of the referee's report, the same be confirmed etc., is erroneous, where the defendant has appeared; for he is entitled to notice; and the propriety of con- firming the report cannot be intelligently determined until it is laid before the court. Such an order is all right, however, if it is not objected to. Citizens Savings Bank v. Bauer, 49 Hun 238, 1 N. Y. Supp. 450. 532 PRACTICAL REAL ESTATE LAW. Actions at law and in equity. — Code of Civil Procedure, §§ 1628, 1630 forbid a suit in equity to foreclose a mortgage, un- til the remedy at law on the bond, if resorted to, has been ex- hausted; and forbid an action at law on the bond, while a suit in equity to foreclose the mortgage, is pending, without leave of court. It was never intended to prohibit the separate fore- closure in equity of two separate mortgages on seperate pieces of property, although each may have been given to secure the same indebtedness. Reichert v. Stilwell, 172 N. Y. 83, 88, 64 N. E. 790. Applicatiou for judgment on default. — Upon' default in plead- ing, only one notice of eight days application for judgment is necessary to be served on the appearing attorneys. On that ap- plication, if unopposed, the usual reference to compute may be made, and judgment rendered thereon without further notice. People ex rel. Kosenquest v. Donnelly, 168 App. Div. 500, 153 N. Y. Supp. 997. The action is begun when the lis pendens is filed, and the sum- mons is served on a necessary party, such as a tenant; so that it is then too late for the owner, though unserved, to tender and stop the suit. Harvey v. Mooney, 168 App. Div. 169, 153 N. Y. Supp. 268. AtTOENEY appointed to compute AKD sell, DIE.ECTOE OF DEFEND- ANT coEPOEATioN. — Tile fuct that the attorney appointed referee to compute and sell, is a director of a defendant corporation, does not affect the title. Code of Civil Procedure, § 1214 construed on application for judgment to a justice out of court. Irregularity only; and waiver of notice of application for judgment is a " consent. ' ' Bartlett v. Lundin, 182 App. Div. 117, 169 N. Y. Supp. 391. Supplemental complaint.^Leave granted to serve a supple- mental complaint, pleading a subsequent default in the payment of interest. Dunn V. O'Connor, 104 Misc. 426, 172 N. Y. Supp. 336. A warrant of attachment cannot be issued on the foreclosure FORECLOSURE. 533 of a mortgage; though it could be issued in an action on the bond alone. Smyth V. Mayer, 105 Misc. 391, 174 N. Y. Supp. 197. 21. Proofs. Interests of defendants need not be proved. — It is not neces- sary to allege or pro^e the nature of the interests of the various defendants. The admission of hearsay evidence as to the in- terests of defendants, will not relieve the purchasers. Douw V. Keay, 16 Misc. 192, 38 N. Y. Supp. 994. Proof as to payments. — ^Unless the mortgage is twenty years overdue, the burden of proof of payment is on the defendant. Supreme court, rule 60, about taking proof as to payments, does not apply to a trial by the court. Redmond v. Hughes, 151 App. Div. 99, 135 N. Y. Supp. 843. Absentee under Revised Statutes. — "If the bill is filed to obtain payment or satisfaction of a sum of money alleged to be due from the absentee, or to be a lien upon property in which the absentee has an interest, as a subsequent incumbrancer or otherwise, the complainant must also be examined on oath as to any payments which may have been made. (2 R. S. 186, § 126, 128.)" Corning v. Baxter, 6 Paige 178. Defendant an infant or absentee. — ^Where the defendant is an infant and puts in a general answer, or if any of the defendants is an absentee, the order of reference must direct the referee to take proof of the facts alleged in the complaint, and to examine the plaintiff on oath as to payments. (Supreme court, rule 60.) On the failure to do this, the purchaser was relieved from his purchase. Smith V. Warringer, 41 Misc. 94, 83 N. Y. Supp. 655. Where the plaintiff was examined as to payments, but no proof of heirship was taken, the title was held good. Franklin v. Di Clemente, 1S3 App. Div. 664, 108 N. Y. Supp. 123. If the defendant is served otherwise than personally within 534 PRACTICAL REAL ESTATE LAW. the state, the facts and circumstances of plaintiff's cause of ac- tion must be proved before the court or referee. Lauder v. Meserole, 148 App. Div. 739, 133 N. Y. Supp. 340. The matter is irregular only; and so cured after on A complicated rule for determining the limitation period under Code of Civil Procedure, § 375, is stated in the majority opinion; but a simpler one is used in the dissenting opinion; and the hope is expressed that the court of appeals will decide the question. Muller V. Manhattan E. Co., 124 App. Div. 295, 108 N..Y. Supp. 852, aff'd 19-5 N. Y. 539. On purchase by testamentary trustee from himself. — The transaction is voidable at the instance of the beneficiaries; and if the price paid was inadequate, the fraud is only constructive, and the ten year statute in Code of Civil Procedure, § 388, is ap- plicable. When actual fraud is alleged, it must be proved by the party alleging it; and if the price is shown to be inadequate, it is a case of actual fraud, and the limitation prescribed by § 382, subd. 5, is applicable. Chorrman v. Bachman, 119 App. Div. 146, 104 N. Y. Supp. 151. /■ On easements against tenants in common. — If one tenant in common is under a disability, the statute will run against his co-tenants. in V. Manhattan R. Co., 124 App. Div. 644, 109 K Y. Supp. 83, rev'd 196 N. Y. 500. Action by trustee iisr bai^keuptct. — The limitation of an action brought hy a trustee in bankruptcy, is two a/ears after the estate is closed. Bankruptcy Act of 1898, § 11, subd. d. A PBTiTioM' IN BANKRUPTCY withirh the four months' period after- transfer, nmy he disregarded, if two years have elapsed since the estate- was closed, -and no lis pendens has been filed in an action to set aside the deed. First day included. — In figuring the limitation period, when years are reckoned, the first day is included. Vose V. Kuhn, 45 Misc. 455, 92 N. Y. Supp. 34. LIMITATION. 693 But this was not so before the Statutory Construction Law (L. 1892, ch. 627), and Code of Civil Procedure, § 788, which it re- pealed. An action by a vendor to foreclose a contract of sale of real estate, not under seal, if brought more than six years after the default, is barred by the Statute of Limitations. Plet V. Willson, 134 K. y. 139, 31 N. E. 336. An executor or administrator is bound to set up the bar of the Statute of Limitations, and has no authority to allow a claim so barred. A proceeding to sell the real estate of a decedent to pay his debts, so barred, can be restrained as a cloud on title. The Statute of Limitations bars a claim in equity as well as at law, on the general principal that equity follows the law. Butler V. Johnson, 111 N. Y. 204, 18 N. E. 643. The statute bars the remedy but not the debt. — The statute may be repealed, and the debt thus revived, without invading the constitutional right of the debtor. So a mortgage given to se- cure notes, may be foreclosed after the six' year statute has barred the recovery on the notes, even though the mortgage does not mention the notes The mortgage, being under seal, can be foreclosed by action at any time within twenty years. Code of Civil Procedure, § 381. Hulberfc v. Clark, 128 N. Y. 295, 28 N. E. 638. A letter recognizing the debt, and admitting that the writer is the debtor of the person addressed, are all that are necessary to take the case out of the statute. The amount of the debt need not be expressed, nor is an expressed promise to pay necessary. Willis V. Wileman, 53 Misc. 462, 102 N. Y. Supp. 1004. The statute can be waived by the parties by agreement, if it is reasonable and founded upon a good consideration. Watertown Nat. Bank v. Bagley, 134 App. Div. 831, 119 N. Y. Supp. 592. Payments made by a co-tenant in possession of the -premises, will keep a mortgage alive ; because they will be deemed to have been made with the implied authority and consent of his co- tenants. Clute V. Clute, 197 N. Y. 439, 90 N. E. 988. 694 PRACTICAL REAL ESTATE LAW. The ten year statute (with one year after majority added), applies to a sale of infant 's real estate by a trustee. Code of Civil Procedure, §§ 388, 396. Ford V. Clendenin, 155 App. Div. 433, 140 N. Y. Supp. 1119, aff'd 215 N. Y. 10, 109 N. E. 124. An action to set aside a deed or to remove a cloud on title, must be brought within ten years after the cause of action ac- crues. (Code of Civil Procedure, § 388.) Insanity, extends the period five years more. (§ 396, subd. 2.) German Savings Bank v. Wagner, 164 App. Div. 234, 149 N. Y. Supp. 654, aif' d 220 N. Y. 608, 115 N. E. 1039. The fact of infancy cannot add more than ten years to the twenty years limitation in any case. Taggart v. Manhattan R. Co., 57 Misc. 184, 109 N. Y. Supp. 38. Soldiers' and Sailors' Civil Relief Act, § 205, provides "That the period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in the military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have accrued prior to or during the period of such service. ' ' The term ' ' period of military service" as used in that Act, is defined in § 101. It begins with the date of the approval of the Act, March 8, 1918, for all persons then in service ; and for all others it begins when they entered active service. This must he taken into consideration when dealing .with statutes of limitations, particularly when dealing with possible liens of decedents deMs, in all cases where death has occurred within two years prior to March 8, 1918. Because if any creditor is in active service, the limita- tion of two years after decedent's death, where no letters have been issued on his estate {Code of Civil Procedure, §' 2714), or within eighteen months after letters have been issued (§ 2702), may he in- definitely extended by the period of such service. This extends for the period of the war, all other periods of limitation in cases where the statutory period has expired since March 7, 1918. LIMITATION. 695 The Limitation Statute is suspended during the war, as be- tween citizens of the belligerent powers. Semmes v. Hartford Ins. Co., 13 Wall. 158. Farenholtz v. Meinsliausen, 181 App, Div. 474, 168 N. Y. Supp. 869. Absence from state.— Absence from the state, under Code of Civil Proceedure, § 401, affects only actions against the person. It does not prevent a mortgage from outlawing; but it does sus- pend the running of the limitation of the right of action on the bond. Fowler v. Wood, 78 Htin 304, 28 N. Y. Supp. 976, aff'd 150 N. Y. 584. Absent from state, in Code of Civil Procedure, § 2653a, on de- termining the validity of a will, does not refer to a permanent nonresident of a foreign country who has never resided here. Bell V. Villard, 48 Misc. 587, 97 N. Y. Supp. 244. 696 PRACTICAL REAL ESTATE LAW. * LIS PENDENS. 1. In general. 2. Sufficiency. 3. Cancelation. 4. Aa cloud on title. 5. Effect. 6. When it takes effect. 7. Effect of failure to file. 8. Right to file. 9. As notice. 10. Statutes. 1. In general. Early history.— In England, and in this state prior to 1823, the mere commencement of a real estate action in a court of law, or the filing of a bill in equity, affecting the title to land, were notice to all the world. By L. 1823, ch. 182, § 11 it was provided that, in order to charge persons not parties to a suit in equity with notice of its pendency, the complainant should file a lis pendens. This provision was incorporated in the ■ Revised Statutes, and later, in a modified form, in Cpde of Procedure, § 132. Hovey v. Hill and Loveridge, 3 Ia,ns. 167. "The act requiring the filing of notice of lis pendens in suits for the foreclosure of mortgages, was not passed until 1840. ' ' L. 1840, ch. 342, § 8. Harrington v. Slade, 22 Barb. 161, 166. The complaint must state a cause of action affecting real prop- erty, or the lis pendens is invalid. Kauffman v. Sunis, 156 App. Div. 208, 141 N. Y. Supp. 110. Complaint must be verified. — The lis pendens is ineffectual if the complaint is improperly verified. Code of Ctvil Procedure, § 1670. * See alao Bliss' Code of Civil Procedure (6th ed.) and Supplement, 1919; Parsons' Code of Civil Procedure; NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 7, p. 839. LIS PENDENS. 697 Filing notice.— Code of Civil Procedure, § 1670 authorizes the filing of one notice, and requires the service of the summons within sixty days thereafter. But ' ' it does not permit the filing of successive notices so as to enable plaintiff to obtain the bene- fit of a notice of pendency of action, indefinitely, without service of summons. ' ' If such notices are filed, the defendant may have them canceled; and the order of cancelation determines the rights of the parties so far as they could be affected by the filing of a lis pendens. Lipschutz T. Horton, 55 Misc. 44-, 104 N. Y. Supp. 850. The index in the county clerk's office is no part of the filing; and the failure of the clerk to index as directed, does not affect the operation of the notice. Hartwell v. Riley, 47 App. Div. 154, 62 N. Y. Supp. 317. Seevice of notice. — Under Code of Civil Procedure, § 1670, ser- vice can he made within sixty days after filing the lis pendens, after filing the complaint. The words " with the complaint " do not mean " at the time when," hut only " in the place with." Contents of notice. — Code of Civil Procedure, § 1670^ requires that the notice shall contain a hrief description of the property. The failure to contain this is fatal. 2. Sufficiency. Desceiption of peopeett. — One containing no description of the property, is a nullity. One describing the property as "all the real property" of the defendant in a certain county, was a nullity under Code of Pro- cedure, § 132. Jaffray v. Bro-wn, 17 Hun 575. A lis pendens in foreclosure, indexed against the proper de- fendants, and properly describing the mortgage by liber and page, also containing the proper section and block number (in New York city), but beginning the specific description on the south side of Grand street, instead of on the north side is suf- ficient. Freedman v. Safran, 131 App. Div. 675, 116 N. Y. Supp. 113. 698 PRACTICAL REAL ESTATE LAW. 3. Cancelation. A lis pendens in an action in the United States district court, can only be canceled in that court. Matter of Miller, 64 Misc. 467, 119 N". Y. Supp. 555. Power vested in court.— In Code of Civil Procedure, § 1670 et seq., "no express authority is given to cancel the notice be- cause the action is not one in which it may properly be filed. But we shall assume such power is vested in the court. ' ' Sehomacker v. Michaels, 189 N. Y. 61, 64, 81 N. E. 555. The failure to serve a summons, or to attempt to effect sub- stituted service within sixty days after filing the lis pendens, nullifies the same; and the lis pendens will be canceled on mo- tion, although the summons was actually served before the mo- tion to cancel was made. Brown v. Mando, 126 App. Div. 380, 109 N. Y. Supp. 726. A motion to cancel for failure to serve the summons within sixty days after filing, was denied, when the defendant remained in hiding, and thus prevented the service. Levy V. Kon, 114 App. Div. 795, 100 N. Y. Supp. 205. Service upon one defendant only within sixty days after filing the lis pendens, will not prevent any other defendant not served, from obtaining cancelation under Code of Civil Procedure, § 1674. Steinmetz v. Kindred, 121 App. Div. 260, 105 N. Y. Supp. 676. A PEITDING ACTION ONLY PARTIALLY DISCONTINUED^ Can Safely he •passed, if an investigation discloses nothing dangerous, and the lis pendens is absolutely canceled. A lis pendens filed in an action for violations of the require- ments of a municipal department, is not a valid objection to taking title, after the violation has been discharged, and the lis pendens canceled; and it is immaterial by what means the dis- charge and cancelation were procured. Kennedy v. HoU, 52 Misc. 379, 103 N. Y. Supp. 231. LIS PENDENS. 699 lu New York city, a fire or building department lis pendens can be canceled upon the consent of the attorney to the depart- ment. L. 1892, ch. 275, § 42. 4. As a cloud on title. A lis pendens filed by one claiming under a deed executed when the property was held adversely, is not a cloud upon the title as recorded, warranting a purchaser at foreclosure in re- fusing to complete his purchase. Baecht v. Hevesy, 115 App. Div. 509, 101 N. Y. Supp. 413. A pending action brought to establish title to or lien upon land, does not of itself, nor does, a duly recorded notice of its pendency, make the title defective, or create a lien upon the land. All that the registration of a lis pendens does, is to require per- sons to look into the claims of the plaintiff who registers it. A lis pendens over fifty years old, is not an objection to a title. Hayes v. Nourse, 114 N. Y. 595, 603, 22 N. E. 40. A lis pendens does not, of itself, constitute a cloud or incum- brance upon lands; and the question as to whether the title to such lands is marketable, depends upon the validity of the claim represented by the lis pendens; which matter will be considered by the court when a vendee refuses to complete his purchase. Baecht v. Hevesy, 115 App. Div. 509, 101 N. Y. Supp. 413. Complaint stating no cause of action. — A lis pendens is not a cloud on a title when the complaint states no cause of action against the land. A lis pendens in foreclosure is not such an incumbrance as to render a title unmarketable, where no complaint has been filed, and the mortgagee has consented to discontinue the action, and to extend the time of payment of the mortgage. Weissberger v. Wallach, 124 App. Div. 382, 108 N. Y. Supp. 887. A pending action and lis pendens filed, justify the rejection of the title by the purchaser, where the complaint states a good cause of action affecting the land. The purchaser is not required 700 PRACTICAL REAL ESTATE LAW. to go outside the complaint and look up the evidence on which the action is based; and determine whether it is maintainable. Simon v. Vanderveer, 155 N". Y. 377, 49 N. E. 1043. Wheee a lis pendens is filed after the closinGj but before the closing deed is recorded, the action is a cloud on the title) if its nature is such as to males it so, provided the record owner was joined, because Code of Civil Procedure, § 1671, provides that a person whose convey- ance is Subsequently recorded, is bound by the notice. Complaint not filed in time. — A filed lis pendens is not a cloud on title, unless a complaint is filed within the statutory time. 5. Effect of. A lis pendens affects only voluntary alienations by the parties, and in no way affects independent parties asserting adverse rights in the property, — such as a purchaser at a tax sale. Becker v. Howard, 4 Hun 359, aff'd 66 N. Y. 5. A lis pendens in foreclosure does not bind infants subsequently acquiring title by inheritance. Gruner v. Euffner, 134 App. Div. 837, 119 N., Y. Supp. 942. A lis pendens cuts off all subsequent conveyances if any de- fendant is served within sixty days after the filing. A judgment creditor whose judgment is perfected and docketed after the fil- ■ ing of a lis pendens in foreclosure under Code of Procedure, § 132, is bound as if he were a party to the action, although the debtor had not been served with process when the judgment was docketed. Fuller V. Scritaer, 76 N. Y. 190. Unserved defendant.^ — But after sixty days from the filing, any unserved defendant may move to have the lis pendens can- celed as to him. Steinmetz v. Kindred, 121 App. Div. 260, 105 N. Y. Supp. 676. After sixty days from filing, any unserved defendant may move to have the lis pendens set aside or canceled as to him; but until this is done, it is effectual to cut off conveyances and in- LIS PENDENS. 701 cumbrances, provided any other defendant has actually been served. Fuller V. Scribner, 76 N. Y. 190, afF'g 16 Hun 130. In foreclosure, under Code of Procedure, § 132, it does not cut off an unrecorded deed from the owner of the equity, delivered before the lis pendens was filed, and recorded between the lis pendens and judgment; because the lis pendens is only notice to purchasers and incumbrancers. Hall V. Nelson, 23 Barb. 88, 14 How. Pr. 32. But Code of Civil Procedure, § 1671 corrects this, by provid- ing that a person whose conveyance is recorded subsequent to the lis pendens, is bound by the judgment. In foreclosure, it cuts off all conveyances recorded after it is filed, no matter when they were delivered. / Ostrom V. McOann, 21 How. Pr. 431. It does not bind one in possession under an unrecorded deed, at the time of filing the lis pendens. Welsh V. Schoen, 59 Hun 356, 13 N. Y. Supp. 71. Persons bound in actions for partition, dower and fore- closure. — Code of Civil Procedure, § IGYla, as added hy L. 1916, ch. 518, in effect Sept. 1, 1916, provides that in actions for partition, dower and foreclomre, the judgments shall bind, in addition to persons heretofore bound, all persons who acquired inchoate dower after lis pendens; and also all persons born between the time of lis pendens and judgment, who would have been bound if born after judgment; provided, however, that the court may, in its discretion, at any time before final judgment, allow such persons to intervene or be brought in. The court may prescribe terms. 6. When it takes effect. Prior to L. 1862, ch. 460, § 6, a lis pendens was not effectual until actual service of the summons. Butler V. Tomlinson, 38 Barb. 641, 15 Abb. Pr. 88. The grantee in a deed recorded after fiUng the lis pendens, but before actual service, is a necessary party. Until the sum- 702 PRACTICAL REAL ESTATE LAW. mons is served on the purchaser's grantor, he (the purchaser) is not included in the description of a subsequent grantee. Farmers' Loan & Trust Co. v. Di'ckson, 9 Abb. Pr. 61, 17 How. Pr. 477. Filing complaint. — Under the provisions of Code of Civil Pro- cedure, § 1670, the filing of a lis pendens, without filing a com- plaint, is not notice. Zoeller v. Eiley, 100 N. Y. 102, 2 N. E. 388. Leitch V. Wells, 48 N. Y. 585. Albro V. Blume, 5 App. Div. 309, 39 N. Y. -Supp. 215. If it is filed after the complaint, it only takes effect from the date of filing the complaint. Burroughs v. Reiger, 12 How. Pr. 171. And an order directing the filing of the complaint nunc pro tunc, will not change the rule.' Weeks v. Tomes, 16 Hun 349, aflF'd 76 N. Y. 601. But the mere fact that an interval elapses between the filing of the lis pendens, and the service of the summons or filing the complaint, does not invalidate the lis pendens. Tate V. Jordan, 3 Abb. Pr. 392. A lis pendens filed before the service of the summons, will be canceled when it is not followed within sixty days by personal service or publication of the summons, as required by Code of Civil Procedure, § 1670. Lipschitz V. Watson, 113 App. Div. 408, 99 N. Y. Supp. 418. A lis pendens is nuUifled by the failure to personally serve the defendants within sixty days, as provided by Code of Civil Pro- cedure, § 1670. The delivery of the summons and complaint to the sheriff for service, saves the action from the bar of the Statute of Limitations; but does not prevent the lis pendens from becoming a nullity, unless the service is actually made. Cohen v. Biber, 123 App. Div. 528, 108 N. Y. Supp. 249. 7. Effect of failure to file. "The object of the notice is to apprise persons, not parties to the suit, of its pendency, and for that purpose the court origi- LIS PENDENS. 703 nally by rule required it to be filed; but whether filed or not, the decree bound all parties to the suit. . . . It is no pretended that there are any persons, not parties to the suit, who have any claim or lien upon the premises. ' ' Held, that the objection by a purchaser at the sale, that no lis pendens was filed, was unten- able. Dai-v'in v. Hatfield, 6 Super. (4 Sandf.) 468, 479. The failure to file a lis pendens does not affect the judgment, if no rights intervene before judgment. The lis pendens "has no relation to titles acquired after judgment. It never was pre- tended that any notice was necessary to render the judgment effectual as against parties claiming under the defendant by transfer subsequent to the judgment. . . . The judgment disposes of the rights of the parties and is a matter of public record. Its effect cannot be impaired by any subsequent transfer by the defendant. He is concluded by it, and his grantee cannot be in any better situation than the party from whom he ob- tained his right. . . . The recording acts have no relation to the subject." Sheridan v. Andrews, 49 N. Y. 478, 482. The above decision was in 1872, before Code of Civil Procedure, § 1631, was in force; but the reasoning is good, in spite of § 1631, re- quiring the filing of a lis pendens; and if the court had jurisdiction of the parties, and granted the decree; and the search discloses no interven- ing rights up to the time of the recording of the referee' f< deed, the title is good. , 8. Right to file. Right absolute.— The right to file a lis pendens is given in all actions affecting the title to real property. Code of Procedure, § 132; Code of Civil Procedure, § 1670. This right is absolute, not depending on the discretion of the court; and the notice, when once properly filed, can only be canceled when the action is settled, discontinued or abated, according to Code of Civil Procedure, § 1674. Mills V. Bliss, 55 N. Y. 139. Beman v. Todd, 124 N. Y. 114, 26 N. E. 326. 704 PEACTICAL REAL ESTATE LAW. An action for the specific performance of a contract, is a proper case for filing a lis pendens. Shandley v. Levine, 44 Misc. 23, 89 N. Y. Supp. 717. But not an action to recover a deposit made on a contract to purchase real estate, and the expenses of searching the title, un- less the necessity of resorting to equity is shown. A motion to cancel the lis pendens, was granted. Krainin v. CofiFey, 53 Misc. 6, 103 N. Y. Supp. 976, aff'd 119 App. Div. 516, 104 N". Y. Supp. 174. Action on covenant of grantee. — But an action by a grantor on the covenant of a grantee to pay over the amounts recovered for the destruction of easements by a railroad company, is a proper case. Schomaeker v. Michaels, 189 N. Y. 61, 65, 81 N. E. 555. Action to compel removal of overhang by wall.— The lis pen- dens cannot be filed in an action brought to compel the removal of the overhang on the plaintiff 's property, by the wall of a build- ing on an adjoining lot. Held, that such an action was not an action to recover a judgment affecting the title to, or the pos- session, use or enjoyment of the adjoining lot. iMcManus v. Weinstein, 108 App. Div. 301, 95 N. Y. Supp. 724. 9. As notice. The mere cancellation of the lis pendens, leaving the suit pend- ing, does not do away with the actual notice of the pending suit. Hayes v. Nourse, 8 St. R. 397, rev'd on other grounds 114 N". Y. 595, 603, 22 N. E. 40. A LIS PEITOENS^ THOUGH ACTUALLY IWVALID^ IS ACTUAL NOTICE OU the record of the existence of the facts disclosed therehy, to one examining the record and finding it. Therefore, if the basis of the action is a good one, it cannot he disregarded in such a case. A lis pendens, when canceled by order of court, ceases to be a statutory notice to purchasers of the premises. "When anyone searching a title, finds that a lis pendens has been canceled, it is not negligent or evidence of bad faith on his part not to search for the papers which have been filed in an action which LIS PENDENS. 705 has been dismissed. It is difficult to conceive of an effective notice of the pendency of an action, when no action is pending. Valentine v. Austin, 124 N. Y. 400, 405, 26 H. E. 973, aff'g 58 Hun 398. 12 N. Y. Supp. 196. 10. Statutes. Foreclosure. — Must be filed in foreclosure action. L. 1840, ch. 342. Code of Procedure, § 111. § 132 amended by requiring filing of lis pendens in foreclosure. L. 1857, ch. 723. Amended by L. 1866, ch. 824. Effect of filing lis pendens and cancelation thereof. Recording and indexing lis pendens provided for. L. 1864, ch. 53. Code of Civil Procedure, § 1670. Amended by L. 1904, ch. 518, in effect Sept. 1, 1904, by adding the words "if the complaint is verified." § 1671 amended by L. 1905, ch. 60, in effect Sept. 1, 1905, by adding a lengthy provision about canceling a lis pendens on the deposit of money, or giving an undertaking; and thereupon the action not to affect real estate. § 1671a added by L. 1916, ch. 518, in effect Sept. 1, 1916, pro- viding for binding inchoate dower and afterborns, before judg- ment. § 1672 amended by L. 1913, ch. 69, in effect Sept. 1, 1913, by adding the provision that "The notice filed in partition suits must be indexed against the name of each plaintiff and of each defendant having any interest or estate in the premises. ' ' (N. B. § 1671 was not amended; therefore there is a question as to whether such a lis pendens would be constructive notice against a plaintiff, against whom the notice is directed to be in- dexed.) § 1674 amended by L. 1892, ch. 504, by adding a long provision about canceling a lis pendens in a judgment creditor's action, on the deposit of money or filing a bond. 45 706 PRACTICAL EEAL ESTATE LAW. LOAN. Expense of searching title. — ^A contract for placing a loan, does not include the expense of searching the title. Heiberger v. Johnson, 34 App. Div. 66, 53 N. Y. Supp. 1057. A loan application containing the following: "It is under- stood that the company's charges are to be paid whether the title is accepted or declined," does not give the company the right to recover for such charges in case it refuses to make the loan capriciously, in bad faith, and without substantial reason;: but the burden of showing that such refusal was capricious, rests upon the defendant who asserts it, when the plaintiff has proved a prima facie case by proving the performance of the services. Title Guarantee & Trust Co. v. Weaoliek, 115 App. Ddv. 608, 101 N. Y. Supp. 7. Loan brokerage is not limited as to persons. Anyone can charge it. Buchanan v. Tilden, 18 App. Div. 123, 45 N. Y. Supp. 417. But the actual lender cannot charg-* it. Under the section of the Revised Statutes forbidding any per- son to charge more than one-half of one per cent for brokerage in soliciting or procuring a loan or forbearance of money, the broker or other person negotiating a loan, is only entitled to one-half of 1 per cent, whether the loan be for a year, or for a term of years. Corp V. Brown, 4 Super. (2 Sandf.) 293. But L. 1895, ch. 467, limiting the charges for loan hroTcerage, coiv- tains the following language: "Except loans on real estate security/^ So that since then, there ha^ been no limitation on hroTcerage charges for procuring loans on real estate. LOAWS BY CORPOEATIOIir TO OFFICEES^ DIEECTOES OE STOCKHOLDEES. A corporation organized under the Insurance Law (L. 1909, ch. 33), is prohibited hy statute, from making a loan to a director or officer thereof. L. 1906, ch. 326, § 9, amending former Insurance Law {L. 1892, ch. 690), § 36. Now Insurance Law (L. 1909, ch. 33), § 36. LOAN. 707 But this does not prevent the corporation from, taking an assignment of a mortgage made by one of its directors; nor from extending a mort- gage made hy a director^ which was assigned to the company. Former Stock Corporation^ Law {L. 1892, ch. 688), § 25, prohibits a loan to a stockholder (excepting in the case of banking and insurance corporations). A director must be a stockholder by L. 1906, ch. 238. Now Stock Corporation Law (L. 1909, ch. 61), §§ 25, 29. The general equitable prohibition against a trustee acting in two inconsistent capacities, also prohibits the making of a loan by any cor- poration, to one of its directors or officer^. LOAN COMMISSIONERS' MORTGAGE. (See Foreclosure.) LOCAL HISTORY. (See Evidence.) LOCAL USAGE. (See Contract.) LOCATION OF STREETS. (See Streets.) LODGING. (See Lease.) LOST. (See Judgment.) LOST PERSONALTY. (See Persona] Property.) 708 PRACTICAL REAL ESTATE LAW. LOST RECORDS. 1. In general. 2. Statutes. 1. In general. Lost records may be supplied under Code of Civil Procedure, § 726. See note on proving lost records, 21 Abb. N. C. 367-382. A lost judicial decree, after 30 years possession, can be sup- plied under L. 1890, ch. 503, by a special proceeding to quiet title. When a judgment roll in partition is lost, a court of equity will not interfere with the possession, after acquiescence for thirty years, even though they were infants. Spicer v. Connor, 148 App. Div. 334, 132 N. Y. Supp. 877. Presumption of nonexistence of document not found in official custody. — "The law presumes that all ofiScers intrusted with the custody of public files and records will perform their official duty by keeping the same safely in their offices, and if a paper is not found where, if in existence, it ought to be deposited or re- corded, the presumption thereupon arises that no such docu- ment has ever been in existence, and until this presumption is rebutted, it must stand as proof of such nonexistence. ' ' Deshong r. City of New York, 176 N. Y. 475, 485, 68 N. E. 880. Entry of judgment presumptive evidence of filing. — An entry of a judgment in the judgment book of a superior court of gen- eral jurisdiction, is presumptive evidence of its filing, though it cannot be found; and a judgment recorded at length in the record book, will be considered binding. Burke v. Kaltenbach, 125 App. Div. 261, 109 N. Y. Supp. 225. 2. Statutes. Lost decree, and defendant owners dead or unknown. — ^After thirty years actual possession under sheriff's or referee's deed recorded, owner may maintain special proceeding by petition to supreme court, stating certain facts, and containing a certi- LOST EECOEDS. 709 fied copy of deed. Order for publication of notice for three months. Final order establishing facts. Lis pendens to be filed. L. 1890, ch. 503. (Repealed by L. 1909, ch. 52.) Real Property Law (L. 1909, ch. 52), § 360. When special proceeding to quiet title may be maintained. § 361. Petition. § 362. Order for publication of notice to persons interested. Amended by L. 1909, ch. 240. § 363. Owners of several parcels may unite in proceedings. § 364. Hearing and final order upon non-appearance of ad- verse claimants. § 365. Hearing and final order upon appearance of adverse claimants. § 366. Lis pendens to be filed and recorded. Code of Civil Procedure, § 726. Where an original pleading or paper is lost or witheld by any person, the court may authorize a copy to be filed and used instead of the original. LOTTERY. (See Real Estate.) LUNATIC. (See Incompetent.) 710 PEAOTIOAL REAL ESTATE LAW. *MAP. 1. In general. 2. Description referring to. 3. Not on file. 4. Streets. 1. In general. Shottld be monumented. — A map by which conveyances are made, should be monwnented on the ground; and the locations of the monu- ments designated on the map. This is essential to make a'marhetdble title, unless the lot lines are established on the ground by practical location. When a lot is sold upon a general plan of restrictions, and map of the tract, the purchaser can compel the sealer to follow that plan and map in subsequent sales. Upjohn V. Scarsdale Co., Supreme Court, Westchester County, Special Term, 1911 (unreported). However this cannot affect the title to the land in the hands of a subsequent purchaser without notice. Canitot be removed feom eegistee's office. — A map once filed in the register's office, carwiot legally be removed therefrom, even by order of court. Abandonment of filed lot subdivisions. — L. 1894, ch. 713 {now Tax Law, L. 1909, ch. 62, § 42) provides for the abandonment of filed lot subdivisions by owners, after ten years, by filing disclaimers in the offices where the maps are filed, and endorsements of such filings on the maps. Not to apply to certain upstate counties;- nor to dedicated streets. Requieements as to filing^ feinting, papbe^ etc. — Beal Property Law, § 334 (added by L. 1910, ch. 415, in effect June 7, 1910) pro- vides a penalty for not filing subdivision maps upon sales of lots there- on. Amended by L. 1916, ch. 143, requiring maps to be printed or drawn upon tracing cloth, linen or canvas bacJced paper. Again amended by L. 191Y, ch. 592, requiring duplicate to be filed in the office of the city, village, or town cleric. ' See also NOTE, N. T. Rpts., Bender Annotated Ed., Bk. 29, p. 546. MAP. 711 A map made in 1856, if produced from a proper custody, can properly be introduced in evidence for tlie purpose of establish- ing a line which is in dispute between other parties. Cravath v. Baylis, 113 App. Div. 666, 669, 99 N. Y. Supp. 973, aflf'd 192 N" Y 559. Donohue v. Whitney, 133 N. Y. 178, 182, 30 N. E. 848. 2. Description referring to. Lot containing more acres than specified on map.— If a lot is granted by deed, and its number is specified with reference to a map, the whole lot will pass by the deed, though it is there men- tioned as containing fewer acres than it actually does. "When the quantity of acres is mentioned, it is only as descriptive of the lot according to common acceptation. ' ' Jackson y. Defendorf, 1 Calnes 493. A map which is referred to in a deed, controls the distances stated therein. The distances given in the deed must be length- ened or shortened so as to conform to the bounds called for by the map. Wessel V. Cramer, 56 App. Div. 30, 67 N. Y. Supp. 425. The map must be taken as part of the deed; and it controls the description; and any explanatory notes on the map are made parts of the description of each and every lot. Brainin v. N. Y. N". H. & H. R. Co., 136 App. Div. 393, 120 N. Y. Supp. 1093. Where reference is made in a deed or devise to a map or plan which is a public record, for a description of the property; prima facie the boundaries as given in the map or plan referred to, will control. If it leads to no absurdity, it will be presumed that the party making the reference, intended to confine the grantee or devisee to the dimensions as there given. Finelite v. Sinnott, 125 N. Y. 683, 25 N. E. 1089. Maps and descriptions in deeds must be interpreted with re- gard to the monuments found on the ground, when it is sought to apply them to the land to which they relate. Hastings v. McDonough, 13 App. Div. 625, 43 N. Y. Supp. 628. The map must yield to actual location on the ground. A con- veyance is to be construed in reference to its distinct and visible 712 PRACTICAL REAL ESTATE LAW. locative calls as marked or appearing on the land, in preference to quantity, course, distance, map or anything else. Any other construction would inevitably produce confusion of titles, and interminable litigation. Van Wyck t. Wright, 18 Wend. 157. Street as laid out on street opening map. — ^A contractor, in selling a lot on a street, adopts the street as laid out on the street opening map. A contract to sell a lot one hundred and twenty- five feet deep, when the map shows a street so wide that ten of the hundred and twenty-five feet was in the. bed of the street, cannot be enforced, even though the ten-foot strip was not actually laid out and paved, as was the case with the remainder of the street. Ring V. Palmer, 83 App. Div. 67, 82 N. Y. Supp. 635. 3. Not on file. The map from which a description is drawn, and to which it refers, not being on file in the register's office, renders the title unmarketable, because there is such an uncrtainty as to the fact of its existence or what it contains, as to render a title deducible from it, one as to which there may at least be a reasonable doubt, if there are no definite descriptions in the deeds or visible monu- ments on the ground. MacPherson v. Schade, 149 N. Y. 16, 43 N. E. 627. And the fact that the purchaser may he able to compel the owner to file it, does not mahe the title marJcetable. The map to which a description refers not being on file, renders the title urmia/rTcetable, provided the boundary lines cannot be located with- out referring to it. The peactical way to handle such a difficulty is to find a copy of the map and examine it; and if it is all right, and the streets do not vary from those laid out on the ground; and the description in the deed, omitting the reference to the map, is sufficiently definite to en-able the premises to be located without the map, the title may be passed. If, however, the map can/not be found, it is not safe to pass the title. MAP. 713 4. Streets. Compelling opening. — A purchaser of lots may compel the mapper or his grantee to open the streets for him, as shown on the map. Tibbits V. Cumberson, 39 Hun 456. Map Streets justify a purchaser in believing that the map is a correct representation of the locality, and that he can use the highways as so represented; and he can enjoin another pur- chaser from building across the streets. Kelly V. Penfield, 67 Misc. 272, 122 N. Y. Supp. 811, mod. 144 App. Div. 903. As dedication. — "When the proprietor of lands surveys, maps, and lays out such lands into lots (numbering them) , with streets designated, named and put down on the map, ... as be- tween him and a grantee of a lot bounded on one of the desig- nated streets, his conveyance is per se a dedication of the street to the use of his grantee, as a street. As between the grantor and the grantee, it is a street, which the latter has a right to use as such as soon as the conveyance is made to him. By force of the grant, an easement is attached to the land granted, which thereby becomes appurtenant, viz. : a right of way on and over the strip designated as a street, for the use of the lot conveyed." Fonda v. Borst, 2 Keyes 48. Taylor v. Hopper, 2 Hun 646, 5 T. & C. 173. Right of owner of lot to prevent closing of streets. — The owner of a lot on a map has the right to prevent the closing of those streets only which he must necessarily use to get access to his property. Badeau v. Mead, 14 Barb. 328. Map easements extend only to the streets surrounding the block in which the lot is, and such other parts of streets as are necessary to obtain access to the public highway. Foerster v. Filers, 60 Misc. 453, 113 N. Y. Supp. 480. Aschenbrenner v. City of New York, 188 N. Y. 581, 80 N. E. 1109. The extent and limitations of private easements originating from conveyances by the mapper, is thus prescribed by the 714 PRACTICAL EEAL ESTATE LAW. court of appeals: The dedication will not extend to all streets however remote. It will extend to the next cross street or avenue on each side of the lots sold. The courts of this state have never held that these rights of way extend to every street on the map. The purchaser of a lot fronting on an unopened street, is en- titled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or way. To this extent will the vendor be held by the implied covenant in his deed, but no further. Eeis V. City of New York, 188 N. Y. 58, 80 N. E. 573. The filing of a map indicating an alley taken off one side of a lot for the use of the owners of specified lots in the tract, does not reduce the dimensions of the lot, but creates an easement only. Howe V. Bell, 143 N.Y. 190, 38 N. E. 200. MAEKETABILITY. 715 * MARKETABILITY. (See Adverse Possession.) 1. In general. 2. Possible claim. 3. Parol evidence. 4. Unmarketable titles. 1. In general. Title subject to reasonable doubt, unmarketable.— "When it is ascertained that there is an existing defect in the title, the purchaser will not be compelled to perform on the allegation that it is doubtful whether the defect will ever incommode him. If there be any reasonable chance that some third person may raise a question against the owner of the estate after the com- pletion of the contract, the court considers this a circumstance which renders the bargain a hard one for the purchaser, and one which it will not, in the exercise of its discretion, compel him to execute." Bklyn. Park Oommrs. v. Armstrong, 45 N. Y. 234, 248. "Although the title tendered may in fact be good, yet if it is subject to reasonable doubt, depending upon the ascertainment of some material fact extrinsic to the record title, to be found by a jury when the question arises, the purchaser in general will not be required to complete his purchase, for he is entitled to a title not only good in fact, but marketable. ' ' Blanck t. Sadlier, 153 N. Y. 551, 556, 47 N. E. 920. A doubtful title cannot be made marketable by an opinion of a court upon a case stated between a vendor and purchaser. Pratt V. Eby, 67 Pa. St. 396. "The purchaser (of land at a judicial sale), is entitled to a marketable title. A title open to a reasonable doubt is not a marketable one. The court cannot make it such by passing upon an objection depending on a disputed question of fact, or a * See also Chamberlayne, Modern Law of Evidence. 716 PEACTICAL REAL ESTATE LAW. doubtful question of law, in the absence of the party in whom the outstanding right was vested. Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905. A title is not fairly marketable, which rests merely upon a presumption, unless such presumption rests so firmly upon facts, that practically no doubt whatever exists as to the existence of the fact presumed. Van Williams v. Elias, 106 App. Div. 288, 94 N. Y. Supp. 611. Shriver v. Shriver, 86 N. Y. 575. Where a record extends back only thirty years, the title should not be passed, no matter how complete the possession has been, without perpetuating the evidence of possession under Code of Civil Procedure, § 1688a, against the representatives of the original and recited former owners. Title to inchoate dower not offered. — A vendor who has agreed to convey the whole of certain premises by quitclaim deed, does not tender a marketable title by offering a quitclaim deed which does not cover the existing inchoate dower of the wife of a prior grantor. This, because, although agreeing to sell "all the premises, ' ' he does not offer title to the inchoate dower. Wallach v. Riverside Bank, 119 App. Div. 238, 104 N. Y. 8upp. 661. Satisfactory title, how determined. — A satisfactory title means a good and marketable one. The law will determine for a man when he ought to be satisfied with a title. Moot V. Business Men's Investment Assn., 157 N. Y. 201, 211, 52 N. E. 1. 2. Possible claim. Bare possibility no objection. — "As the law does not regard trifles, a bare possibility that the title may be affected by exist- ing causes which may subsequently be developed, when the highest evidence, of which the nature of the case admits, and evidence, amounting to a moral certainty, is given, that no such cause exists, will not be regarded as a sufficient ground for de- clining to compel a purchaser to perform his contract." So held regarding a question of a possible will and debts of a de- cedent. Schermerhom v. NiWo, 15 Super. (2 Bosw.) 161. MARKETABILITY. 717 A mere hostile claim against one in possession of real prop- erty, does not make his title unmarketable, as the claim may he wholly unsubstantial. Todaro v. Somerville Realty Co., 136 App. Div. 767, 121 N. Y. Supp. 440. Possibility of other heirs, is not enough to reject- on. A pur- chaser of land at an administrator's sale cannot refuse to take it on the ground that the title is defective because there is a mere possibility that other heirs exist than those named in the petition to sell it, without some proof of their existence. Greenblatt v. Herrmann, 144 N. Y. 13, 38 N. E. 966. "A mere possibility that there are heirs or any person in ex- istence who could make claim of title to the land is insufficient upon which to base an infirmity of title in the land sought to be conveyed. If reliance is placed upon such fact it devolves upon the defendant to show it by proof sufficient to raise a reasonable doubt." RuflF V. Gerhardt, 73 App. Div. 245, 76 N. Y. Supp. 743. Sonn V. Kennedy, 51 Misc. 234, 236, 100 N. Y. Supp. 885. Publication service on unknown heirs etc., of a person who has disappeared for nineteen years, is ^ood, although his brothers and sisters are known and are not joined. All the heirs are bound. Guyer v. Raymond, 8 Misc. 606, 29 N. Y. Supp. 395. 3. Parol evidence. Title dependent on parol evidence or facts extrinsic from record, not marketable, — Where there is a defect in the record Mtle which can be supplied only by resort to parol evidence, and the title may depend upon questions of fact, the general rule is that the purchaser will not be required to perform his con- tract. Trying v. Campbell, 121 N. Y. 353, 24 N. E. 821. Holly V. Hirsch, 135 N. Y. 590, 598, 32 N. E. 709. Wanser v. De Nyse, 188 N. Y. 378, 381, 80 N. E. 1088. ' ' Where the title depends upon a question of fact, such as is 718 PRACTICAL REAL ESTATE LAW. not capable of satisfactory proof, ... a purchaser cannot be compelled to take it. ' ' Slhriver v. Shriver, 86 N. Y. 575. A title dependent upon facts extrinsic from the record, is not marketable. . Burwell v. Jackson, 9' N. Y. 535. Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905. If a defect appears, and the title depends upon facts removing it, which facts the purchaser can only establish by parol testi- mony, should his title be afterward attacked, the purchaser will be relieved. Moore v. Williams, 115 N. Y. 586, 22 N. E. 233. The necessity of parol evidence to remove doubts, makes a title unmarketable, unless the doubt is created by facts of in- heritance not of record, or other facts easily obtainable. , iMaupln, Marketable Title to Eeal Estate (2d ed.), § 289. 4. Unmarketable titles. Boundaries in dispute render a title unmarketable. Voorhees v. DeMyer, 3 Sandf. Ch. 614, aff'd 2 Barb. 37. An adverse chain makes a title unmarketable. Eeydel v. Reydel, 10 Mise. 273, 31 N. Y. Supp. 1. Possession outstanding makes a title unmarketable. Maupin, Marketable Title to Real Estate (2d ed.), § 290. A right of re-entry on condition broken renders a title un- marketable. 1 Sugden on Vendors (8th Am. ed.) 597. Recitals of conveyances in old unrecorded deed. — ^A title was held to be unmarketable because of recitals in an old deed of conveyances of portions of the premises, which conveyances were not of record, so that just what property they covered could not be ascertained. Dingley v. Bon, 130 N. Y. 607, 614, 615, 29 N. E. 1023. MARKETABILITY. 719 A break in the chain of title, unexplained, makes a title un- marketable. So also, where any fact upon which the title de- pends, is not susceptible of proof. Maupin, Marketable Title to Real Estate (2d ed.), § 289. Doubtful questions of fact as to the heirs of a deceased person, make a title unmarketable. Recitals in a deed by a supposed heir, have no probative effect, unless he is proved to have been a member of the family. Lowenfeld v. Ditchett, 114 App. Div. 56, 99 N. Y. Supp. 724. A title coining through the supposed heirs of an owner who died intestate in 1844, the present owners having been in pos- session since 1865, and where there is no affirmative proof that there are no persons in being who might have rights in the premises, is unmarketable. Wanser v. De Nyse, 188 N. Y. 378, 381, 80 N. E. 1088, rev'g 116 App. Div. 796, 102 N. Y. Supp. 36. Pending- an appeal from an ohdee canceling a lis pendens in an action for the specific performance of a prior contract, the title is unmarketable. The order canceling the lis pendens is not a judgment within the meaning of Code of Civil Procedure, § 1323 ; the title offered is subject to the ultimate result of the appeal; and the record furnishes the examiner with actual knowledge of the contract, irrespective of the status of the lis pendens. One of owners insane when conveyance made. — ^Where, in an examination of a title, the vendee has discovered that on an inquisition in lunacy, a jury has found that one of the owners in the chain of title was insane when he conveyed, although the court never confirmed the finding, the vendor's title is not marketable; because it is subject to a serious question of fact which might be decided in different ways by different tribunals. Brokaw v. Duffy, 165 N. Y. 391, 59 N. E. 196. • Failure of title in owner not established by judgment relieving purchaser. — ^A judgment relieving a purchaser on account of an unmarketable title, does not, of itself, establish a failure of title in the owner, in an action against his grantors for breach of his covenants of title. Hilliker v. Rueger, 219 N. Y. 334, 114 N. E. 391. 720 PBACTICAL EEAL ESTATE LAW. MARRIAGE. (See Husband and wife.) MATERNITY. (See Descent.) MAY. (See Construction.) MECHANICS' LIENS. 721 * MECHANICS' LIENS. (See Lien, Building loan contract) 1. In general. 2. Assignment. 3. Consent of owner. 4. Cover what. 5. Discharge. 6. Expiration. 7. Filed after conveyance. ' 8. For what work filed. 9. Foreclosure. 10. Orders and adviance payments. 11. Owner. 12. Validity. 13. Statutes. 1. In general. Distinguished from mortgage and money judgment. — ^A me- chanic's lien is an incumbrance, like a mortgage, but differs from a mortgage in that it is not created by contract, but is im- posed by law. It differs from a money judgment in that it is special, and affects only the real estate upon which the work is done, while a judgment affects all of the debtor's real estate. Freeman v. Oram, 3 N. Y. 305. Mechanics'' liens did not exist at common law. — The first act' affecting all cities and villages in the state, was L. 1844, ch. 305. The first general act was L. 1885, ch. 342, which practically repealed all prior legislation on this subject. This was revised by L. 189T, ch. 418. The whole subject was later covered by the Lien Law (L. 1909, ch. 38). The right to file, under L. 1885, ch. 342, terminated at the owner's death; because the rights of general creditors intervene, who are entitled to have the whole estate, if necessary, devoted to the payment of their claims. Tubridy v. Wright, 144 N. Y. 519, 39 N. E. 640, aff'g 7 Misc. 403, 27 N. Y. Supp. 978. * See also Ray on Mechanics' Liens; Fiero on Special Actions (3d ed.) and Supple- ment, 1919. 46 722 PRACTICAL EEAL ESTATE LAW. Preference of materiaJmen not contractors. — Those material- men who are not contractors, are preferred over the others. Jaekson v. Egan, 200 N. Y. 496, 94 N. B. 211, rev'g 138 App. Div. 505, 123 N. Y. Supp. 297. A mechanic's lien for material only, has priority over one for labor and materials filed at an earlier date. American M. C. Co. v. New Hyde Park Fire District, 172 App. Div. 774, 159 N. Y. Supp. 648. Prior lien filed later. — A prior lien carries with it, in respect to priority, all liens preferred to it, though actually filed later. Paris V. Lawyers Title Ins. & Trust Co., 141 App. Div. 866, 126 N. Y. Supp. 753, aflf'd 206 N. Y. 637, 99 N. E. 83. Continuance. — ^A mechanic's lien is continued by the order, and not by the docket; which latter is only the notice of the con- tinuance. Manton v. Bklyn. & Flafcbush Realty Co., 217 N. Y. 284, 111 N. E. 819. Precedence over unrecorded deed. — ^A mechanic's lien takes precedence of an unrecorded deed, even though the grantee is in possession. Lien Law (L. 1909, ch. 38), § 13. Reedy Elevator Co. v. Monok Co., 171 App. Div. 653, 157 N. Y. Supp. 585. A mechanic's lien takes precedence of a bankruptcy, though filed after the bankruptcy, if the materials were furnished or labor performed before. Horton v. Queens Co. Machinery Corp., Inc., 101 Misc. 31, 166 N. Y. Supp. 662, aff'd 182 App. Div. 932, 169 N. Y. Supp. 1097. Meaning of consent, in Lien Law (L. 1909, ch. 38), § 3. Mere knowledge is not enough. Valenti v. New York Theatre Co., 99 Misc. 517, 166 N. Y. Supp. 76. When to be piled. — By L. 1916, ch. 507, in effect July 1, 1916, a lien may he filed during the work, or within four months after its completion^ And no assignment of contract or an order, shall have any validity, unless filed in the county cleric's office within ten days after its date. MECHANICS ' LIENS. 723 By Lien Law {L. 1909, ch. 38), § 19, as amended by L. 1916, ch. 507, § 19, after July 1, 1916, where a mortgage or mechanics' lien foreclosure appears in the abstract, whether the lis pendens is open or canceled, search for mechanics' liens must he made for one year prior to the filing of the lis pendens. Composition of ceeditoes and the dischaege of liews are pro- vided for. These affect the liens of judgments whic^ may he subordir nated to later mechardcs' liens. Careful consideration of these provi- sions mu^t he made in making title, either through a composition or an execution issued on a money judgment. *2. Assignment. The right to file exists only for the benefit of the person per- forming the labor or furnishing the materials; and before the lien is filed, the right cannot be assigned. EoUin V. Cross, 45 N. Y. 766. An assignee of the claim cannot file the notice. Tisdale Lumber Co. v. Read Realty Co., 154 App. Div. 270, 138 N. Y. Supp. 829. After the lien is filed, however, it is a chose in action, and can be assigned. First National Bank v. Mitchell, 46 Misc. 30, 93 N. Y. Supp. 231. A foreclosure could not be maintained by an assignee of the claim in 1857. The right to file the lien is only a personal one. Roberts v. Fowler, 4 Abb. Pr. 263. After general assignment. — ^IJnder the act of 1851 (ch. 517), a mechanic's lien filed after a general assignment for the bene- fit of creditors, could not have been enforced or foreclosed. Quimby v. Sloan, 2 Abb. Pr. 93. Jackson v. Sloan, 2 Abb. Pr. 104. During the ninety days "there is a preferential statutory right in the nature of an unperfected equitable lien in favor of the laborer, mechanic, materialman or subcontractor. And See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 26, p. 1098. 724 PRACTICAL REAL ESTATE LAW. when a notice of lien is filed that right is perfected. ' ' It takes precedence over a general assignment for creditors made before the lien is filed. Kane Co. v. Kinney, 174 N. Y. 69, 66 N. E. 619, rev'g 68 App. Div. 163, T4- N. Y. Supp. 260. Mortgage in trust for benefit of creditors. — ^A lien for ma- terials furnished' before, but not filed until after, the execution of a mortgage in trust for the benefit of all creditors, is entitled to priority over the mortgage. American Mtge. Co. v. Merrick Construction Co., 120 App. Div. 160, 104 N. Y, Supp. 900, aff'd 190 N. Y. 626. * 3. Consent of owner. Filing with consent of owner. — ^A lien may be filed for work and materials performed and furnished with the consent of the owner. Kerwin v. Post, 120 App. Div. 179, 104 N. Y. Supp. 1006. Meaning of consent under Lien Law (L. 1909, ch. 38), § 3. Mere knowledge is not enough. Valenti v. New York Theatre Co., 99 Misc. 517, 166 N. Y. Supp. 76. Consent of vendor when work done for vendee. — A contractor performing work for the vendee, may assert his lien against the vendor, when the contract of sale expressly requires the erec- tion of a hotel. In that case, the vendor consents to the im- provements within the meaning of Lien Law (L. 1909, ch. 38), § 3. Barnard v. Adorjan, 116 App. Div. 535, 101 N. Y. Supp. 502, aff'd 191 N. Y. 556. Jones V. Menke, 168 N. Y. 61, 60 N. E. 1053. When the vendor gives possession to a vendee under a con- tract of sale, even though the contract uses the words "for the purpose of erecting buildings thereon," and the vendee erects buildings and then defaults in the payments under his contract, and the vendor re-enters, said vendor is not liable for the cost of ' See also NOTE, N. Y. Rpte., Bender Annotated Ed., Bk. 28, p. 319. MECHANICS' LIENS. 725 the buildings, unless they were erected with his knowledge and consent. Beck V. Catholio University, 172 N. Y. 387. 65 N. E. 204. 4. Cover what. They only bind whatever interest in the premises the person against whom they are filed has. Fish V. Anstey Construction Co., 71 Misc. 2, 130 N. Y. Supp. 927. When it extends to center of steeet. — A mechanic's lien on a lot on a map, extends to the center of the street in front, if the owner owns so far. Mechanics' liens do not attach to an inchoate right of dower, even though the wife agrees to pay for the improvement. A complaint in an action to foreclose, joining her as a defendant, is demurrable by her. Johnston v. Djihlgren, 14 Misc. 623, 36 N. Y. Supp. 806. The men attaches to the land as well as the building; 6e- cause a building is a part of the freehold. A mechanic's lien on a building erected by a tenant as his own, is a lien on the building only. The statute is adapted to the case of any fixture removable by the tenant. Ombony v. Jones, 19 N. Y. 234. Knapp V. Brown, 45 N. Y. 207. (The rule to the contrary stated in Hilton & Dodge Lumber Co. v. Murray, 47 App. Div. 289, 62 N. Y. Supp. 35, is not the law.) The lien on a building erected by a tenant, attaches to that building after it has been removed to another lot. 5. Discharge. After bonding a lien, the owner is entitled to a cancelation of the lis pendens in an action to foreclose it; because the land is no longer involved in the suit. Breen v. Lennon, 10 App. Div. 36, 41 N. Y. Supp. 705. A lien bonded and ordered discharged, cannot be continued by an ex parte order to that effect. The lien is dead, and life can- 726 PRACTICAL REAL ESTATE LAW. not be infused into it by an order of continuance. There is nothing to continue. Matter of Hurwitz, 5S Misc. 379, 110 N. Y. Supp. 1105. Notwithstanding the discharge of a lien by the giving of a bond, an action to establish the lien, in form as an action to fore- close it, is proper, although no sale of the premises affected, can be therein directed. Kruger v. Braender, 3 Misc. 276, 23 N. Y. Supp. 324. A mechanic's lien may be discharged on an undertaking by an assignee of the contractor, although the statute uses only the word "contractor." But the assignee cannot limit his lia- bility on the undertaking; and he must give one for "the pay- irient of any judgment which may be recovered in an action to enforce the lien," even though his surety thus becomes respon- sible for the debts of third persons. Russell & Erwin Mfg. Co. v. City of New York, 118 App. Div. 88, 103 N. Y, Supp. 9. In honding, notice to the attorney, means the person who filed the lien and is acting as attorney, — and a foreclosure action need not have been commenced by him, as attorney. A bond to discharge a lien terminates with the lien. (One year.) Matter of Thornton Apartment Co., 74 Misc. 210, 133 N. Y. Supp. 756. A mechanic's lien cannot he bonded after judgment of foreclosure and sale, even though the case is on appeal. Lien Law (L. 1909, ch. 38) , §§ 19, 20 refer specifically to a judgment to be rendered; showing an intention to refer to a time prior to the entry thereof. By deposit. — After judgment of foreclosure and sale, and while the case is on appeal, the lien can only be discharged without payment, by depositing in court under Lien Law (L. 1909, ch. 38), § 55, the required money, and obtaining the order of discharge. Deposit made under former Lien Law (L. 1897, ch. 418), § 19. The lien on the deposit is discharged, unless extended by order of court, on the failure of the lienor to bring an action to fore- close within one year. Matter of 35th St. & 5th Ave. Realty Co., 121 App. Div. 625, 106 N. Y. Supp. 390. MECHANICS' LIENS. 727 The provisions of Lien Law (L. 1909, ch. 38), § 19, do not allow service upon a foreign lienor by mail. When a statute is silent as to the manner of service, it must be personal; or if without the state, in our statutory manner. Matter of Blumiberg, 149 App. Div. 303, 133 N. Y. Supp. 774. The discharge of a lien by deposit, after the filing of a sum- mons and complaint in foreclosure, but before service, is a good discharge; and a motion to deposit a further sum to cover costs, was denied. Empire City Lumber Co. v. Agress Const. Co., 75 Misc. 519, 135 N. Y. Supp. 879. The Lien Law (L. 1909, ch. 38) provides for satisfaction hy deposit, at any time before action begun. In a case where an action was begun, and the lien satisfied by deposit, on the same day, one may take from the county clerk's cash-book, the entry of the deposit money ahead of the fees, as evidence that the deposit was made before the lis pendens was filed. 6. Expiration. The lien expires in one year, by the Lien Law (L. 1909, ch. 38), unless an action to foreclose it is sooner begun. Where the owner and contractor are joined as co-defendants, and the con- tractor only is served before the end of the year, the action is not begun against the owner; because he is not a "joint contrac- tor" or "otherwise united in intejgst" with the contractor. Code of Civil Procedure, § 398. Hence the lien is discharged as to the owner; and he can have the lis pendens canceled as to himself, although he was actually served after the year had expired. Martens v. O'Neill, 131 App. Div. 123, 115 N. Y. Supp.' 260. The commencement of an action to foreclose is not alone enough to continue the lien beyond the one year limited by the statute (L. 1897, ch. 418, § 16), but a lis pendens must also be filed. Matter of (Jabler, 57 Misc. 148, 107 N. Y. Supp. 542. Under Code of Civil Procedure, § 405 the lien is good for one year after the final determination of the action to foreclose it, in 728 PRACTICAL REAL ESTATE LAW. any other way than by voluntary discontinuance, dismissal of the complaint for want of prosecution, or a final judgment on the merits. Conolly V. Hyams, 176 N. Y. 403, 68 N. E. 662. A defendant lienor in a mechanic's lien foreclosure action, where a lis pendens is filed, need not himself file a lis pendens to preserve his own lien beyond the year. McAllister v. Case, 15 Daly 299, 5 N. Y. SUpp. 918. Extension. — ^A mechanic's lien is extended by statute, where the lienor is made a defendant in a suit to foreclose another lien. But the words "another lien" in the statute, refer to another . mechanic's lien, and not to the lien of a mortgage. Philbrick & Bro. v. Florio Co-operative Assn., 137 App. Div. 613, 122 N. Y. Supp. 341. Under Lien Law (L. 1897, ch. 418), § 16 a defendant's lien is not kept alive unless he is served in the action; but the lien of any defendant served is kept alive, although other defendants are not served. Martin v. De Coppet, 64 Misc. 385, 118 N. Y. Supp. 523. Lien Law (L. 1909, ch. 38), §§ 17, 18, mean that the order con- tinuing the lien, must be followed by an entry on the docket, so as to publicly show it. This was not done in this case, because the clerk's fees were not paid. Manton v. Bklyn. & Flatbust Eealty Co., 160 App. Div. 783, 145 N. Y. Supp. 996, rev'd 217 N. Y. 284, on the^round that no rights had intervened in this particular case. 7. Filed after conveyance. An innocent purchaser from a person who obtained his title and had his deed recorded previous to the filing of a notice of lien, is not bound to take notice of any lien filed after his grantor's deed was recorded. Noyes v. Burton, 29 Barb. 631, 17 How. Pr. 449. If, previous to filing the notice of lien, the owner has parted with his interest in the property, no lien is acquired. Ernst V. Reed, 49 Bail). 367, 373. Hunger v. Curtis, 42 Hun 465. MECHANICS' LIENS. 729 ''We have heretofore repeatedly held, that a sale of the prem- ises to a bona fide purchaser before the notice by which a lien is sought to be created is filed with the county clerk, will operate to prevent the acquisition of a lien. The statute only gives the right to acquire a lien upon the right, title and interest of the contracting owner existing at the time such notice is filed, so that if he then have no interest no lien on the premises is ac- quired." Cox T. Broderick, 4 E. D. Smith 721. A bona fide purchaser of an uncompleted building, is protected against mechanics' liens filed afterwards. But in order to establish his status as a bona fide purchaser, he should make careful inquiries as to unpaid claims, and have any such found, taken care of. But when the purchaser was not bona fide, a mechanic's lien filed after the transfer, was held good. In this case, the building was unfinished, there was a nominal consideration, and the court held that this was sufficient to authorize a finding of knowledge on the part of the grantee that the conveyance was fraudulent. Gilmour v. Colcord, 96 App. Div. 368, 89 N. Y. Supp. «89, mod. 18a N. Y 342 76 N. E. 273. 8. For what work filed. Improvements under parol contract of purchase. — Mechanic's lien may be filed and foreclosed by a purchaser in possession, for improvements made under a parol contract of purchase. Suddard v. Lewis, 175 App. Div. 749, 162 N. Y. Supp. 493. Suevetoe's seevices. — Mechanic's lien can be filed by a surveyor for services in making a survey, if he has put stakes in the ground for the purpose of establishing a building line; because that is an improve- ment of the property. Machinery placed in a vacant building, and fastened by screws, so as not to become part of the realty, must nevertheless be considered as furnished "for the improvement of the prop- erty," within the meaning of the Mechanics' Lien Law (L. 1897, ch. 418). Griffin v. Ernst, 124 App. Div. 289, 108 N. Y. Supp. 816. 730 PEACTICAL EEAL ESTATE LAW. An architect is not entitled to a lien for preparing plans and specifications; but he is for actual supervision of the work of construction. Rinn v. Electric Power Co., 3 App. Div. 305, 38 N. Y. Supp. 345. An architect may have a lien for supervising the work; but not for drawing plans. Swasey v. Granite Spring Water Co., 158 App. Div. 549, 143 N. Y. Supp. 838. Spannhake v. Mountain Construction Co., 159 App. Div. 727, 144 N. Y. Supp. *9. Foreclosure. (See State.) A foreclosure sale transfers the interest of the owner at the time of filing the lien; consequently all subsequent liens are cut off. Livingston v. Miller, 16 Abb. Pr. 371. Sale of property instead of interest in property. — ^A fore- closure sale under L. 1855, ch. 404, where the sheriff sold the property, instead of the interest of the defendant in the property, was erroneous and a re-sale was ordered. Smith V. Corey, 4 Abb. Pr. 208. Dismissal without determining lien of another defendant. — The dismissal of an action to foreclose, when another lienor is a defendant without determining the lien of such defendant, is improper. Hinkle v. Sullivan, 108 App. Div. 316, 95 N. Y. Supp. 788. Sale of balance of premises to satisfy Hen of defendant lienor. — The holder of a mechanic's lien who is a defendant in the foreclosure of a prior mortgage, may, after the sale under foreclosure of a part of the premises, obtain an order requiring the sale of the balance of the premises to satisfy his lien; and the purchaser at such a sale must complete his purchase. Livingston v. Mildrum, 19 N. Y. 440. * See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 28, p. 101, Bk. 30, p. 880, Bk. 33, p. 761. MECHANICS' LIENS. 731 On a foreclosure the complaint and lis pendens improperly de- scribed the premises, and the complaint was dismissed; but the defendant lienors properly pleaded, and judgment of foreclosure and sale was entered. A title made through the judgment was held marketable. Hill V. Flatbush Consumers' Ice Co., 143 App. Div. 559, 127 N. Y. Supp. 961. In federal courts. — Mechanics' liens can be foreclosed in federal courts, where there is the requisite diversity of citizen- ship; and the procedure is that of the United States court, and not that of the state creating the lien. Schmulbacli v. Caldwell, 196 Fed. 16. In court not of record. — The lien can be enforced in a court not of record under Code of Civil Procedure, § 3404, which is L. 1897, ch. 418, § 7. Therefore proceedings to bond a lien, under Lien Law (L. 1909, ch. 38), § 19, can be conducted in a court not of record. Upon a foreclosure of a lien in a court not of record, the court can only adjudicate the amount due and cannot direct a fore- closure and sale. Egan V. Laemmle, 5 Misc. 224, 25 N. Y. Supp. 330. The county court has power, under Code of Civil Procedure, § 3399, to foreclose mechanics' liens up to $2,000 in amount. And a lien for over $2,000 cannot be canceled by that court upon the giving of an undertaking. Matter of Steiger v. London, 52 Misc. 462, 102 N. Y. Supp. 497, rev'd on other grounds, 138 App. Div. 246. In city court of New York. — ^A mechanic's lien can be fore- closed in the city court of New York; which court can also de- clare void a transfer in fraud of the lien. Schultz V. Teichman Engineering &, Const. Co., 79 Misc. 357, 140 N. Y. Supp. 429. A court of equity having jurisdiction of an action to fore- close a mechanic 's lien, can determine the validity of claims that in anywise interfere with the enforcement of the lien. Concord Construction Co. v. Plante, 63 Misc. 120, 116 N. Y. Supp. 153, aflf'd 137 App. Div. 243, 121 N. Y. Supp. 1026. 732 PRACTICAL EEAL ESTATE LAW. A prior mortgagee agreeing to make future advances, is not a proper party to a mechanic's lien foreclosure action; because lie has neither contractual nor legal privity with the lienor. Alyea v. Citizens' Sav. Bank, 12 App. Div. 574, 42 N. Y. iSupp. 185, afif'd 162 N. Y. 597. Filing of lis pendens by one lienor sufficient. — ^In a mechanic 's lien foreclosure, the filing of a lis pendens by one lienor, is enough; and the liens of all the defendants are thereby con- tinued. Lincoln Nat. Bank v. Pierce Co., 98 Misc. 325, 334, 164 N. Y. Supp. 421. 10. Orders and advance payments. Oedees not liens. — Orders filed in the county clerks' offices under Lien Law (L. 1909, ch. 38), § 15, are not liens on the premises. Order void unless filed. — An order by a contractor on the owner, is void unless filed in the county clerk's office under Lien Law, (L. 1897, ch. 418), § 15 and payment of such an order by the owner will not avail against a lien filed previous to the time of payment. Kenyon v. Walsh, 31 Misc. 634, 66 N. Y. Supp. 35. An order by a contractor, directing the drawee to pay out of the last payment, makes the holder take the risk as to whether the last payment under the contract, will become due; because the order must be contingent upon the performance of the con- tract, so as to render the last payment or some part of it, due. Beardsley v. Cook, 143 N. Y. 143, 38 N. E. 109. An order by a contractor on the owner in favor of a material- man, is conditioned upon the contractor's earning the amount due under his contract. Young & Bros. Co. v. Snedeker, 146 App. Div. 344, 130 N. Y. Supp. 771. Assignment of contracts. — ^Lien Law (L. 1909, ch. 38), § 15 construed as to assignments of contracts. Williams Engineering & C. Co. v. City of New York, 175 App. Div. 671, 162 N. Y. Supp. 381, mod. 222 N. Y. 1. MECHANICS' LIENS. 733 Advance payments. — ^Payments made by an owner on a build- ing contract, in advance of its terms, are not prohibited, unless made for the purpose of avoiding the provisions of the Lien Law (L. 1909, ch. 38). Glens Falls P. C. Co. v. Schenectady County Coal Co., 83 Misc. 552, 144 N. Y. Supp. 519, mod. 163 App. Dlv. 757. Tommasi v. Archibald, 114 App. Div. 838, 100 N. Y. Supp. 367. Lien Law (L. 1897, ch. 418), § 7 does not require that advance payments made to the contractor (before they become due under the contract), be excluded in determining the sum due the con- tractor unless made in bad faith, to avoid the provisions of the Lien Law. And the burden of showing this bad faith, is on the person claiming the lien. The doctrine that a sub-contractor, by doing work, acquires an inchoate lien which is perfected by filing the lien, applies only as against an assignee for the benefit of the contractor, or his assignee in bankruptcy. Behrer v. McMillan, 114 App. Div. 450, 100 N. Y. Supp. 35, afl'd 191 N. Y. 530. Mechanics' lienors can compel the payment of amounts paid by the owner in advance of the terms of the contract, a second time, to the extent of their liens. Banham v. Roberts, 78 Hun 246, 28 N. Y. Supp. 828. * 11. Owner. What interest of owner affected. — The lien affects only such interest as the owner has at the time it is filed, unless there is collusion. Munger v. Curtis, 42 Hun 465. A lien stating the name of the owner in the alternative, is good. Lien Law (L. 1897, ch. 418), § 9, subd. 7 provides: "A failure to state the name of the true owner or contractor, or a misdescription of the true owner, shall not affect the validity of the lien. ' ' • Abelmftn v. Myer, 122 App. Div. 470, 106 N. Y. Supp. 978. * See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 39, p. 1014. 734 PEACTICAL REAL ESTATE LAW. The word "failure" quoted above, means an unsuccessful at- tempt, not an intentional omission, to name the true owner. De Klyn v. Gould, 165 N. Y. 282, 59 N. E. 95. A mechanic's lien against the wrong name, does not defeat the lien. Gass V. Souther, 46 App. Div. 256, 61 N. Y. Supp. 305, aff'd 167 N. Y. 604. The term "owner" in the statute is defined as "the owner of some interest;" but a notice of lien filed against a party des- ignated as owner, who is not the true owner, is not, by reason of such filing, valid as against the unnamed owner of the fee. In other words, it is a lien to the extent of the ownership of the person named, only. Strauchen v. Pax;e, 195 N. Y. 167, 88 N. E. 51. A life tenant is an owner, within the meaning of the Me- chanics' Lien Law (L. 1897, ch. 418). Lang V. Everling, 3 Misc. ,530, 23 N. Y. Supp. 329. The word "owner" in L. 1863, ch. 500 (affecting New York city), means the owner of the erection, and not of the land on which it is placed. Muldoon V. Pitt, 4 Daly 105, aff'd 54 N. y. 269. One in actual possession under an unrecorded deed, is the ' ' owner ' ' of the premises, within the meaning of the Lien Law (L. 1909, ch. 38) ; and a notice of lien may be directed to him as owner. Liens duly filed against such owner in possession under an unrecorded deed, have a priority over subsequent liens filed against his grantor as owner of record. Vogel & Bender Co. v. Montgomery, 133 App. Div. 836, 118 N. Y. Supp. 10. 12. VaHdity. The failure to serve the notice of lien within ten days after filing, in no way affects the validity of the lien. La Pasta v. Weil, 20 Misc. 10, 44 N. Y. Supp. 778, rev'd on other grounds 20 Misc. 554. The lien must affirmatively state that so much material 'has been furnished, or so much labor performed; and that a certain MECHANICS' LIENS. 735 amount remains unpaid; or the lien is fatally defective. Merely- giving the dates when the first and last items were furnished, is not sufficient. Eiley v..Durfey, 145 App. Div. 583, 130 N. Y. Supp. 297. Improper verification. — ^A mechanic's lien, verified in another state before a New York commissioner, but containing no cer- tificate as to the commissioner's authority, was held not properly verified, and not sufficient to create a lien. Cream City Furniture Co. v. Squier, 2 Misc. 438, 21 N. Y. Supp. 972. A mechanic's lien is not enforcible against the real estate of a municipal corporation held for public use, in the absence of express statutory authority. Leonard v. City of Brooklyn, 71 N. Y. 498. Nothing due from owner or contractor. — ^A mechanic's lien filed by a subcontractor or any of his employees, is not enforcible if nothing is due from the owner or contractor. Crossman Bros. & Rosenbaum v. Dunalf B. Co., 83 Misc. 101, 144 N. Y. Supp. 605. (But the burden of establishing the facts is not on a purchaser; and as to him J such a lien is a cloud on title, making it unmarketable.) Notice not filed promptly. — ^A person who furnished materials to a contractor, which were used in the construction of the build- ing, and who filed his lien within six months, acquired no lien, because such notice was filed after the work was completed and the contractor paid. The materialman should have filed his lien promptly, if he was not willing to trust the contractor. Carman v. Mclnerow, 13 N. Y. 70. Dbscbiptioh' not including peopeety intended to be coveeed. — A lien filed against property fifty feet from a corner, cannot affect prop- erty one hundred and fifty feet from the corner, although the latter property, is clearly intended to be covered; because the description is in- sufficient. In disregarding such a lien, however, care should be taken to re-examine the docket just before closing, to make sure that there has been no am,endment to the description. The foreclosure of a lien which does not give the street number of the premises, and describes them as half the actual width. 736 PEACTICAL EEAL ESTATE LAW. does not give the purchaser at the sale a marketable title, al- though the complaint and lis pendens give the correct width of the lot. Spreckerhoff v. Gordon, 120 App. Div. 748, 105 N. Y. Supp..586, aff'd 194 N. Y. 577. Error in name of owner. — ^Validity not affected by an error in stating the name of the owner. Marsh v. Thomson Realty Corp., 174 App. Div. 218, 160 N. Y. Supp. 138. Invalid if not filed within ninety days after the completion of the work. Geo. Colon & Co. v. Smith, 178 App. Div. 100, 165 N. Y. Supp. 165. Nothing due contractor — Where the owner finishes the work (on failure of the contractor), in his own way and not under the, original contract, there is nothing due the contractor; and liens of the subcontractor fail. Ogden V. Alexander, 140 N. Y. 356, 35 N. E. 638. 13. Statutes. For list of early statutes, see list of laws repealed in L. 1885, ch. 342, § 26. In cities only. How to be filed, docketed, foreclosed and dis- charged. L. 1880 ch. 486. (Eepealed by L. 1909, ch. 38.) General act. L. 1885, ch. 342. (Eepealed by L. 1909, ch. 38.) Former Lien Law. L. 1897,- ch. 418. (Eepealed by L. 1909, ch. 38.) Code of Civil Procedure, §§ 3398-3419. (Eepealed by L. 1909, ch. 38, and re-enacted in Lien Law, L. 1909, ch. 38, §§ 40-61.) Lien Law (Law 1909, ch. 38). § 2 amended as to definitions. L. 1914, ch. 506. § 11 amended as to service of notice on a corporation. L. 1913, ch. 88. § 19, subd. 3 amended by L. 1909, ch. 427. § 21 amended as to discharge of liens for public improvement. L. 1914, ch. 266. Lien Law amended generally by L. 1916, ch. 507, in effect July 1, 1916. MERGER. 737 MERGER. (See Corporations.) 1. In general. 2. Of lease in fee. 3. Of contracts in deeds. 4. Of restrictive covenants. 5. Of corporations. 6. Of mortgages. 1. In general. At law and in equity. — ' ' While a merger at law follows inevit- ably upon the union of a greater and lesser estate in the same ownership it does not so follow in equity. There the doctrine is not favored, and the estates will be kept separate where such is the intention of the parties, and justice requires it, and that in- tention will be gathered not only from the acts and declaration of the party, but from a view of the situation as affecting his interest, at least prior to the presence of some third person's right." Smith V. Roberts, 91 N. Y. 470, 475. Subsequent security extinguishment of prior one. — Whether a subsequent security of a higher nature is intended as collateral to a prior debt, or as a satisfaction and extinguishment of it, de- pends upon the intention of the parties; but in the absence of any evidence of intention, the law regards the higher security as an extinguishment of the prior one. , Butler V. Miller, 1 Denio 407. 2. Of lease in fee. Question of intention. — The merger of a leashold estate in the fee, is a question of intention at the time the conveyance was made. Matter of Stafford, 105 App. Div. 46, 94 N. Y. Supp. 194. A tax lease merges in the fee where the purchaser owns only an undivided interest in the fee. The tax title will inure to the common benefit. Washburn Sect. 882 (6th ed.). 47 738 PEACTICAL EEAL ESTATE LAW. 3. Of contracts in deeds. Executory collateral agreements. — When an executory contract for the sale of land, contains agreements collateral to and apart from the giving of a deed, such collateral agreements are not merged in the deed. Witbeck v. Waine, 16 N. Y. 532, 534. Restrictions in deed, but not in contract. — Where the contract contained no restrictions, but the deed delivered did, they are en- forcible. Lyons v. Edmunds, 161 App. Div. 20, 146 N. Y. Supp. 277. * 4. Of restrictive covenants. By cpmmon ownership. — ^A covenant against nuisances and as to buildings, is extinguished by merger of common ownership. . Korn V. Campbell, 119 App. Div. 401, 104 N. Y. Supp. 462, afl'd 192 N. Y. 490, 85, N. E. 687. Restrictive covenants merge in common ownership under cer- tain conditions only. Post V. Weil, 115 N. Y. 361, 22 N. E. 145. They merge in the fee, when the imposer of them gets, the property back again, if said im,poser has conveyed no property in the nsighhor- hopd while they were outstanding. f 5. Corporations. Merger and consolidation.— Upon the merger of two corpora- tions, only one ceases to exist; but upon the consolidation of them, both go out of eixstence and a new one comes in. Upon the merger of a corporation named as executor in a will, into another corporation, the latter may qualify when the will uses the words "or successors." Matter of Bergdorf, 149 App. Div. 529, 1,33 N. Y. Supp. 1012, aff'd 206 N. Y. 309, 99 N. E. 714. • See' also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 30, p.- 587. tSee also NOTE, N. Y. Epts., Bender Annotated Ed., Bk. 26. p. 955, MERGER. • 739 The meegek of a BANiaxNG coepoeation which is an executoe and TRUSTEE under a will, into another corporation, maJces, under Banking Law {L. 1914, c/i. 369), §§ 4.8Y-496, the new corporation the executor and trustee under the will in place of the old one; and vests title to a bond and mortgage in the new corporation. Meegee ceetificate, wheee filed. — The merger certificate of cor- porations needs only to be filed in the office of the secretary of state. Stock Corporation Law (L. 1909, oh. 61), § 15. Judgments docketed against one of the meegbd coepoeations AFTEE the meegee^ are not liens on the real estate of the consolidated corporation, because Stock Corporation. Law {L. 1909, ch. 61), § 15, provides that the property of the merged corporation shall vest without change or diminution. When, more than two business corporations are merged, judgments against the merged corporation's which did not own the real estate, are not liens under Stock Corporation Law (L. 1909, ch. 61), § 15. A merged corporation is continued in existence for satisfying its creditors only. Execiition may issue against the property of the merged corporation, as though no merger had taken place. (Not so with consolidated corporations, however.) Irvine v. New York Edison Co., 207 N. Y. 425, 101 N. E. 358. 6. Of mortgages. Intention of parties. — A conveyance of mortgaged premises from the owner thereof to the mortgagee, will not operate as a merger of the mortgage in the legal title, when it was not the intention of the parties that it should have that effect. Van Nest v. Latson, IP Barb. 604. Merger is a question of intention as a matter of fact ; but as a matter of law, when a mortgage and title to the mortgaged premises vest in the same person, the mortgage becomes merged in the realty, unless it clearly appears that the merger was not intended. The record of the conveyances whereby such merger is effected, is notice to the assignee, of said merged mortgage. Townsend v. Provident Realty Co., 110 App. Div. 226, 96 N. Y. Supp. 1091. Merger cannot be assumed from the fact that the holder of record of the mortgage, owned the premises. In this case he 740 PRACTICAL REAL ESTATE LAW. had assigned the mortgage by unrecorded assignment prior to the time when he took title to the property. Purdy V. Huntington, 42 N. Y. 334, rev'g,46 Barb. 389. The merger of a mortgage in the fee is presumed. The burden of showing the non-merger is on the vendee. Krekeler v. Aulbach, 51 App. Div. 591, 64 N. Y. Supp. 908, aflf'd 169 N. Y. 372, 62 N. E. 416. But in passing titles on the authority of the last and second from last cases, the examiner mVfSt bear in mind that an unrecorded assignment of a mortgage is good and valid; and if the fact is that the mortgagee had assigned his mortgage by unrecorded assignment before he took the title to the fee, the mortgage clearly did not merge; also that the ex- aminer is not in court where he can maJce a record of the facts. It is not safe to pass a title on such a merger, without absolute proof that the mortgage had not been assigned by the mortgagee when he took the title to the fee. Reissue by purchaser paying mortgage. — A purchaser of land subject to a mortgage which he, by a clause in his deed, assumed and agreed to pay as a part of the consideration, and which he subsequently did pay, taking an assignment in blank from the mortgagee at the time of payment, may reissue such mortgage to his creditors in payment of a debt, by filling up the blank with such creditor's name; and thus bind the land in the hands of subsequent purchasers from him with warranty. The last pur- chaser takes the deed with constructive notice of the mortgage, because it is on record, and his only remedy is upon the cove- nant of warranty in his deed. Kellogg V. Ames, 41 N. Y. 259. A mortgagor cannot take assignments to himself of mortgages on his premises, and by assigning them, give them priority over a mortgage made by himself prior to the last assignment. But, it seems, the rule would be otherwise, if a purchaser from the mort gagor had taken the assignments. Sherow v. Livingston, 22 App. Div. 530, 48 N. Y. Supp. 269. MIDDLE LETTERS. (See Name.) MILITARY LAW. 741 MILITARY LAW. Acquiring land for military purposes by condemnation. L. 1896, ch. 444. Military Law (L. 1909, ch. 41). § 185 amended to acquiring sites and additional lands for armories. L. 1912, ch. 296. Military Law amended extensively as to armories. L. 1913. ch. 558. state Law (L. 1909, ch. 59), § 51 amended as to acquisition of land by United States for military purposes. L. 1917, ch. 654. 742 PRACTICAL REAL ESTATE LAW. MINES AND MINERALS. Reservation of privileges not objection to title when there is no reason to suppose they exist. — It is no valid objection to the title of a vendor, that the conveyance under which he holds the premises, contains a reservation of mines and minerals and water privileges, if, from the evidence, there is no reason to sup- pose that there are any minerals or water privileges on the land. "The defendant might as well object to the title on the ground that the original grant from the crown contained a reservation of the royal mines of gold and silver, which may, by a bare pos- sibility be contained in the bowels of the earth within the limits of this farm. ' ' Winne v. Reynolds, 6 Paige 407. Granite and limestone minerals. — The reservation of a right to dig and remove mines and minerals, does not reserve title to granite and limestone on the surface. Brady v. Brady, 31 Misc. 411, 65 N. Y. Supp. 621, aff'd 88 App. Div. 427, 84 N. Y. Supp. 1119, rev'd 181 N. Y. 178. Minerals include what.^ — An exception of mines and minerals in a deed, includes gypsum lying below the surface, which must be mined; biit not limestone, which lies on the surface, and is quarried. The fact that the grantor did not know of" any par- ticular mineral, makes no difference. Minerals, used alone, in- clude all inorganic substances which can be taken from the land. White V. Miller, 200 N. Y. 29, 92 N. E. 1065, aff'g 134 App. Div. 908, 118 N. Y. Supp. 1150. AssiGNMEiTT OF UNDIVIDED SHAEE IN EIGHT. — The rule that the as- signment of an undivided share in a mineral right, has the effect of ex- tinguishing the right, has no application here. Mineral rights in lands may be partitioned by the owners of the mineral interests. But the oypner of the fee is not a tenant in common with the owners of the mineral rights; but they own separate portions of the estate in severalty. Canfleld v. Ford, 28 Barb. 336, aff'g 16 How. Pr. 473. MISTAKE. 743 The state is authorized to acquire mineral rights in Dutchess and Putnam counties, by L. 1912, ch. 509. Acquisition by adverse possession.— The title to mines and minerals may be acquired by adverse possession,— not only by the owner of the surface, but by a person having no interest therein. Couch V. Armory Commission, 91 iMiso. 445, 154 N. Y. Supp. 945. MINORITY. (See Suspension of Alienation.) * MISTAKE. A mistake in an instrument is ground for reformation of the contract; but a misunderstanding between the parties, is not. N. Y. Ice Co. V. Northwestern Ins. Co., 31 Barb. 72, 10 Abb. Pr. 34. Mistake in registry. — ^A party is only bound by the actual registry in the proper place of the record, in default of other notice. Gillig V. Maas, 28 N". Y. 191, 196. Bank v. Frank, 45 Super. (13 J. & S.) 404. Where one obtains title to land by mistake, he may be treated in equity as a trustee of the legal title for the equitable owner (the grantor) ; and the latter may compel a reconveyance. Lamb v. Schiefner, 129 App. Div. 684, 114 N. Y. Supp. 34. A deed founded on a mistake as to the identity of the property intended to be conveyed, passes no title at all; since it is open to attack by both the grantor and the grantee. In this case, the wrong one of two adjoining lots (having similar houses), was contracted for and conveyed; and yet a title company was obliged to pay the loss for passing the title to the wrong lot. Ehmer v. Title Guarantee & T. Co., 156 N. Y. 10, 50 N. E. 420. See also NOTE, N. Y. Epts., Bender Annotated Ed., Bk. 29, p. 847. 744 PEACTIGAL EEAL ESTATE LAW. MONUMENTS. (See Description; Real Estate.) Monuments aee oedinaeily necessaet on a subdivision map^ in order to make a marketable title to the lots; because without them, sur- veyors may not be able to locate the lot lines. Land of neighbor not monument. — In a description, the land of a neighbor, unmarked, is not considered a monument. Buffalo N. y. & Erie R Co. v. Stigeler, 61 N. Y. 348. For the penal statute about the wilful destruction of monu- ments, see under Real Estate (Landmarks). "Where there as no monuments, or if monuments once exist- ing are gone, and the place where they originally stood cannot be ascertained, the courses and distances, when explicit, must govern, and cannot be controlled or affected by parol evidence." Drew V. Swift, 46 N. Y. 204, 209. When the monuments referred to in a deed have disappeared, parol evidence of their former location, is competent. Tuxedo Park Assn. v. Sterling Iron & E. Co., 60 App. Div. 349, 70 N. Y. Supp. 95. A soldiers' monument erected in a highway in the village of White Plains by authority of the board of trustees, was held to be an authorized use of a portion of the highway not used for passage; and it was further held that the consent of the owner of the fee was not necessary. Tompkins v. Hodgson, 2 Hun 146, 4 T. & C. 435. MORE OR LESS. (See Description.) MORTGAGE. 745 * MORTGAGE. (See Foreclosure; Tender; Usury; Water.) 1. In general. 2. Certificate of reduction. 3. Lien only for amount advanced. 4. By life tenant. 5. Apportionment and spreading agreements. 6. Assignment. 7. To building loan association. 8. Clauses and terms. 9. By corporations. 10. Payment and discharge. 11. Equitable revival of cut off mortgage. 12. Equities. 13. Estoppel certificate. 14. Extension of time of payment. 15. Mortgagee in possession. 16. Participation agreement. 17. Payment presumed after twenty years. 18. On personalty. 19. On personalty statutes. 20. Purchase money. 21. As affected by Recording Act. ' 22. Release from. 23. Revivor after foreclosure. 24. Subject to. ' 25. Statutes. 26. Loan commissioners' mortgage statutes. 1. In general. Defined. — It is "any conveyance of land intended by tlie parties, at the time of making it, to be a security for the pay- ment of money or the doing of some prescribed act." (Wash- burn on Real Property (6th ed.), v. 2, p. 34.) To constitute a mortgage only two things are necessary; a conveyance of prop- erty and a contemporaneous agreement that such conveyance shall be a security. Thomas on Mortgages (3d ed.), § 13. Burnett v. Wright, 135 N. Y. 543, 32 N. E. 253. * See also Thomas on Mortgages (3d ed.) ; Fiero on Special Actions (3d ed.) and Supplement, 1919. 746 PEACTICAL EEAIj ESTATE LAW. A conveyance, whatever its form, if in fact given to secure a debt, is neither an absolute nor a conditional sale, but a mort- gage; and the grantor may maintain a suit for redemption, even though the land has been sold to a bona. fide purchaser, and an action to recover money had and received would be barred by the Statute of Limitations. Li such a case the court will sub- stitute for the land a redemption in money. The right to re- deem is an essential part of a mortgage, read in by the law if not inserted by the parties, even after the law day has long passed by. Even an express stipulation not to redeem, does not prevent redemption, because the right is created by law. Mooney v. Byrne, 163 N. Y. 86, 57 N. E. 163. A mortgage by deed and defeasance agreement, cannot be made an absolute conveyance by the mutual physical destruction of the defeasance agreement for a consideration. Conover v. Ralmer, 60 Misc. 241, 111 N. Y. Supp. 1074. Nor by a general release. Luesenhop t. Einsfeld, 184 N. Y. 590, 77 N. E. 1191, rev'g-93 App. Div. 68, 87 N. Y. Supp. 268. A mortgagee need not make a claim on the mortgagor's ad- ministrator for the mortgage debt. Olmstead v. Latimer, 9 App. Div. 163, 41 N. Y. Supp. 44, mod. 158 N. Y. 313, 63 N. E. 5. Mortgagees are necessary parties to the release of a party wall agreement. Maupai v. Jackson, 139 App. Div. 524, 124 N. Y. Supp. 220. A mortgagee need not join in a consent to the existence of an encroachment, unless the mortgage is being foreclosed. Volz V. Steiner, 67 App. Div. 504, 73 N. Y. Supp. 1006. (But it is not advisable to follow this decision in practice; for the purchaser at a foreclosure sale would surely not he hound hy such a consent.) Although a moetgage in the foem of a trust deeb is probably INVALID^ yet it is safest to have proof that the creditors ivere actually paid, he fore passing one. MORTGAGE. 747 A debtor may mortgage a portion of Ms property to secure a portion of his creditors by an instrument in the form of a trust deed. Knapp V. McGrowan, 96 N. Y. 75. A mortgage executed by a husband and wife, on premises owned by them as tenants in common, covers the interests of both; and there is no presumption that the joining by the wife is only effectual to release her inchoate dower. Snyder v. Ash, 30 App. Div. 183, 51 N. Y. Supp. 772. On partition a mortgage on an undivided share attaches to the whole of the plot allotted to the mortgagor; and the plots allotted to the other owners, are relieved from its lien. Jackson v. Pierce, 10 Johns. 414. Mortgagor part owner of fee; mortgage given by partner. — A mortgagor who is a part owner of the fee, and also the owner of a mortgage on another part, includes in his mortgage his interest as mortgagee. A mortgage given by one partner on his individual interest in the firm, is subordinate to a subsequent mortgage made by the firm. Barber v. Palmer, 70 Hun 498, 24 N. Y. Supp. 451. Mortgage to nonresident, where payable. — A mortgage to a nonresident mortgagee whose residence is known, together with the interest, must be paid, unless otherwise specified, at the resi- dence of the mortgagee. Otherwise, the mortgagee can elect that the principal become absolutely due under the clause in the mortgage, and foreclose; although the mortgagor was ready and willing to pay it in this state. Weyand v. Randall, 131 App. Div. 167, 115 N. Y. Supp. 279. A mortgage taken in good faith from the grantee of an in- competent, who was in possession of the premises, will be en- forced, although the deed is set aside ; on the ground that where one of two innocent parties must suffer from a wrong, he whose action enables the wrong to be done, must bear, the loss. Reilly v. Eeilly, 63 App. Div. 169, 71 N. Y. Supp. 287. 748 PRACTICAL REAL ESTATE LAW. When a mortgage is given without a bond or other extrinsic evidence of indebtedness, and contains no eS;press covenant to pay anything, the remedy is confined to the land, by 1 R. S. 738, § 139. Severance v. Griffith, 2 Lans. 38. A parol agreement to make a loan for an amount in addition to that in the bond, even if followed by the loan, is not a charge on the land. This is because, with us, a mortgage is in no sense a title; but only a lien or security. Stoddard v. Hart, 23 N. Y. 556. A mortgage not accepted by the mortgagee, is of no force and effect ; and although recorded and apparently a lien, is no ground for rejection. Wilsey v. Dennis, 44 Barb. 354. Mortgage made without authority. — ^Neither is a mortgage made by one without authority. Glasscock v. Robinson, 21 Miss. 85. But where the invalidity of the mortgage is doubtful, the pur- chaser need not take in the face of it. Nicol V. Carr, 35 Penn. St. 381. Liability of devisee or heir. — That provision of the Revised Statutes (1 R. S. 749, § 4), requiring a devisee or heir to satisfy out of his own property a mortgage executed by his testator or ancestor upon real estate which has passed or descended to him, unless there is an express testamentary direction that such mort- gage shall be otherwise paid, does not contemplate that the devisee or heir shall be so liable irrespective of the property which descends to him; but rather, that his liability to pay the mortgage shall be measured by, and not exceed, the value of that property. Hauselt v. Patterson, 124 N. Y. 349, 26 N. E. 937. The wife of the ownee of the i,and must join in an agreement apportioning a mortgage. MORTGAGE. 749 One who holds property as collateral security for debt, is not obligated to pay prior liens thereon. iMallouk V. American Exch. Nat. Bank, 157 App. Div. 711, 142 N. Y. Supp. 724. A mortgage given without a recited bond, is valid if it con- tains an express agreement to pay the debt. Sullivan v. Com Exchange Bank, 154 App. Div. 292, 139 N". Y. Supp. 97. A MOETGAGE FOE ANTECEDENT INDEBTEDNESS may he held void OS an attempt to give a preference, in case the mortgagor goes into banJc- ruptcy within four months. A deed of trust to pay creditors is not a mortgage, and no mortgage tax is due on it. Dryer v. Hopper, 162 App. Div. 590, 147 N. Y. Supp. 1028. Unsealed note, instead of bond. — ^A debt secured by a sealed mortgage and an unsealed note, instead of a bond, may be en- forced by a foreclosure of the mortgage after six, but before twenty, years from the time when the debt became due. The debt is the principal thing; a note is one form of security for it, and a mortgage is another. Pratt V. Huggins, 29 Barb. 277. A guaranty of the payment of a mortgage, will pass to a subse- quent assignee thereof. But the holder must first attempt the collection of the debt, before he can resort to the guarantors upon their guaranty. Cady V. Sheldon, 38 Barb. 103. A SECOND MORTGAGEE CAN PAY THE INTEREST ON A FIRST MORTGAGE and charge it on his mortgage, although there is no provision to that ejfect in his mortgage. A tender of the principal and interest, although after due date, before foreclosure, discharges the lien of the mortgage, though the debt remains. But such tender can only be made by the owner of the property,— not by a stranger. Josephson v. Ginsburg Realty Co., 169 App. Div. 189, 154 N. Y. Supp. 533, aff'd 222 N. Y. 609, 118 N. E. 1063. 750 PEACTICAi REAL ESTATE LAW. Mortgage made by assigitee to secttee oeiginal pukchasee's BOND. — If a contract vendee assigns his contract, and the assignee who takes title, makes a mortgage to secure the original 'purchaser's bond, the mortgage is good; because in our form of mortgage there is a coven- ant to pay the debt anyway; and the mortgagor can be held for de- ficiency. A MOETGAGE MADE BY ONE OF THE DEVISEES UNDEE A WILL^ CAN BE CUT OFF by the exercise of a power of sale contained therein. A mortgage on upland includes a right of access, and to dock out to the channel over land subsequently granted to the mort- gagor. (Mutual Life Ins. Co. v. Voorhis, 71 Hun 117, 24 N. Y. Supp. 529, to the contrary notwithstanding.) After-acquired property. — A mortgage with warranty cove- nants covers an after-acquired title. TeflFt V. Munson, 57 N. Y. 97. A mortgage may specifically cover after-acquired lands. And in such a case a judgment of foreclosure and sale, expressly in- cluding such lands, carries good title. New York Water Co. v. Crow, 110 App. Div. 32, 96 N. Y. Supp. 899, aff'd 187 N. Y. 516. Washington Trust Cto. v. Morse Iron Works & Dry Dock Co., 106 App. Div. 195, 94 N". Y. Supp. 495, mod. 187 N. Y. 307, 79 N. E. 1022. Priority. — ^Where two purchase money mortgages are given at the same time, one to the vendor and one to a third party, the former has priority, on the theory of a vendor 's lien. Boies V. Gardner, 53 Hun 236, 6 N. Y. Supp. 721, aff'd 127 N". Y. 620. 2. Certificate of reduction. Vendee entitled to certificate. — ^Where the contract provides for the taking of the land subject to a mortgage for a certain amount at a certain rate of interest, and the record of the mort- gage shows it to be for a greater amount, at a greater rate of in- terest, the vendee will not be compelled to take the title on a letter from the mortgagee stating the reduction of the principal and rate of interest. He is entitled to a cerificate of such reduc- tion in shape for recording. .Kf; Oppenheimer v.- Humphreys, 31 St. R. 622, 9 N. Y. Supp. 840, aff'd 125 N. Y. 733. MORTGAGE. 751 A certificate of reduction of a mortgage in shape for recording, must be furnished to the purchaser, if the mortgage is claimed to be reduced. Oppenheimer v. Humphreys, 31 St. R. 622, 9 N. Y. Supp. 840, aff'd 125 N. Y. 733. 3. Lien only for amount advanced. To secure future advances. — A mortgage is a lien only for the amount advanced under it; and when a mortgage is given to secure future advances, without showing such to be the fact, the lien of a second mortgage comes ahead of the advances made under the first mortgage subsequent to the recording of the second mortgage. Ketcham v. Wood, 22 Hun 64. Enforcible for amount in subject clause of deed. — ^Although it is valid only for the amount advanced under it, yet when it has become a charge upon the premises by conveying subject to it, it may be enforced for any amount mentioned in the subject clause of the deed. Freeman f. Auld, 37 Barb. 587, 25 How. Pr. 327, 44 N. Y. 50. 4. By life tenant. Given by life tenant with power to consume principal. — ^A mortgage given by a life tenant who has power to consume the principal, covers the fee title; because it is an exercise of his power to use the principal. Blauvelt v. Gallagher, 22 Misc. 564, 49 N. Y. Supp. 608. Remaindermen of full age are estopped from asserting that a mortgage by the life tenant covers their interest when they represent to the mortgagee, through an agent, that the life ten- ant owns the property. Dickinson v. Blake, 116 App. Div. 545, 101 N. Y. Supp. 709. 5. Apportionment and spreading agreements. Omittiwq mention of paecel. — An agreement apportioning the various amounts, aggregating the whole, on various properties, hut. omit- 752 PEACTICAL REAL ESTATE LAW. tiri'g any mention of one parcel, does not operate to release that parcel from the mortgage. A MOETGAGE MAY BE APPOETIONED SO AS TO MAKE SPECIFIC AMOUNTS LIENS ON SPECIFIC LOTS, by an agreement between the mortgagee and the owner of the real estate, reciting: the mortgage date, parties, rec- ord, amount due, and the property covered; also that it is desired that a certain lot shall be subject to the mortgage to the^extent of a specified amount with specified interest, and that the balance of the premises shall be subject to the properly stated amounts; and agreeing, in con- sideration of $1, that the mortgage shall be a lien on each lot for the separate amount only, ivith like effect as though separate mortgages (specifying details) had been executed and delivered in place of the one; and that in other respects the mortgage shall stand unmodified^ It should be consented to by all subsequent lienors, who should also agree that it shall have full force and effect; and the agreement should be executed and acknowledged by all, and recorded. FOEM OF EXTENSION OE SPEEADING AGEEEMENT TO COVEE ADDITIONAL PEOPEETT. — Agreement between the owner of the fee, party of the first part, and the owner of the mortgage, party of the second part. Recites: the mortgage, with parties, description, and assignments, if awy; that the party of the first part owns the premises; and that the parties desire to extend the mortgage and impose the lien on the premises hereinafter described; now theeefoee, in consideration of $1 the first party grants and releases to the second party {premises described) ; habendum in fee; provided that if the sum above mentioned is paid, these presents to be void. Understood that the premises last above described, shall be .subject to the mortgage in all respects the same as though they had been originally included therein. * 6. Assignment, Assignee takes subject to defenses between original parties. — The assignee of a mortgage, althougli a bona fide holder, takes the same subject to all the defenses existing between the original parties. Thomas on Mortgages (3d ed.), § 334. Ingraham v. Disborough, 47 N. Y. 421. Davis -V. Beehstein, 69 N. Y. 440. * See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 6, p. 8, Bk. 10, p. 846, Bk. 13, p. 40, Bk. 19, p. 705, Bk. 27, p. 893, Bk. 29, p. 650, Bk. 33, p. 666. MORTGAGE. 753 And subject to equities.— And not only subject to any latent equities that exist in favor of the mortgagor, but also subject to like equities in favor of third persons and strangers. Schafer v. Reilly, 50 N. Y. 61. Also subject to an oral agreement extending the time of pay- ment, although he had no notice of such agreement. Quackenbush v. Wheaton, 46 Misc. 357, 94 N. Y. Supp. 823. Notice to mortgagor. — If an assignee of a mortgage wishes to protect himself against bona fide payments by the mortgagor to the mortgagee, he must notify the mortgagor of the assign- ment. 1 R. S. 763, § 41 provides that the recording of an as- signment of a mortgage shall not, of itself, be deemed notice of the same to a mortgagor so as to invalidate any payment made. Van Keuren v. Corkins, 66 N. Y. 77, 80. Descent of mortgage when taken by assignment as muniment of title. — ^Where a mortgage is taken by assignment as a muni- ment of title, it passes with the land to the heirs at law, upon the death infestate of the holder thereof. Browne v. Ferris, 56 Hun 601, 11 N. Y. Supp. 97. Guaranty of payment. — "It is well settled that the assign- ment of a bond and mortgage carries with it the guaranty of pay- ment and collection, although not mentioned in the assignment." Stillman v. Northrup, 109 N. Y. 47.3, 482, 17 N. E. 379, citing Craig v. Parkis, 40 N. Y. 181. (This is the reason for the insertion of the words " without recourse," so frequently found in assignments.) Are conveyances. — ^Assignments of mortgages and satisfac- tions of same, are conveyances within the meaning of the Re- cording Acts. Bacon v. Van Sehoonhoven, 87 N. Y. 446, 450. Brewster v. Games, 103 N. Y. 556, 562, 9 N. E. 323. Notations of assignments on records of mortgages.— There is no statute making it the duty of the clerk to note the record of an assignment in the record of the mortgage. It is purely a 48 754 PRACTICAL REAL ESTATE LAW. matter of convenience. No rule compels the statement, in an assignment of a mortgage, of a description of the lands, or of the place of record of the mortgage, as far as the recording of it by the clerk is concerned. Viele V. Judson, 82 N. Y. 32, 37. Ordinarily, an exectttok oe trustee cannot assign a prior in- terest in a mortgage held by him. But it may be done if the whole mort- gage is assigned and an ownership agreement taken bach. A SEAL WAS NEVER NECESSARY on ttn assignment of a mortgage; be- cause it is not a conveyance of lands. Need not be in writing. — ^An assignment of a mortgage or of a judgment," need not be in writing. Mack V. Mack, 3 Hun 323. Need not be recorded or in writing. — The title to a mortgage can be passed by mere delivery; so an assignment thereof need not be recorded, or even in writing. A title by foreclosure sale is not defective because of a failure to record an assignment of the mortgage. Fryer v. Rockefeller, 63 N. Y. 268, 270. Gift may be made by delivery. — ^A gift of a mortgage may be effected by a mere delivery of the security. Hall V. O'Brien, 218 N. Y. 50, 112 N. B. 569. The mortgage passes by an assignment of the bond; but the bond does not pass by an assignment of the mortgage. A recital in the mortgage that a bond was executed, is conclusive evidence of the execution of the bond. Cooper V. Newland, 17 Abb. Pr. 342. The mortgage follows the bond, although not expressly men- tioned in the assignment, and vests in the assignee; for it cannot exist as an independent security. Jackson v. Blodget, 5 Cow. 202. The assignment of a recorded mortgage, accompanied by the bond, but without the mortgage, is as effectual for all purposes as if accompanied by the niortgage. Clement v. Clash, 21 N. Y. 253. " MORTGAGE. 755 An assignment of tlie mortgage without the bond, is a nullity. But an assignment of the bond or note, will draw after it the mortgage, and operate as an assignment of that also. Merritt v. Bartholick, 47 Barb. 253, aff'd 36 N. Y. 44, 34 How. 129. An assignment of a mortgage does not pass the bond; because the mortgage is a mere incident of the debt, and an assignment thereof does not pass the debt. Smith V. Thompson, 118 App. Div. 6, 103 N. Y. Supp. 336. Manne v. Carlson, 49 App. Div. 276, 63 N. Y. Supp. 162. As collateral security. — On an assignment of a mortgage as collateral security, if the assignee forecloses and buys in the property, his assignor can force him to convey the property to his assignor, upon his paying the amount of the debt with in- terest. This, on the principle that, in such cases, the assignee holds the mortgagee as trustee for the assignor, after the amount due him is paid. Slee V. Manhattan Co., 1 Paige 48. Hoyt V. Martense, 16 N. Y. 231. When a mortgage is assigned as collateral security, the as- signor cannot elect that the principal become due for non-pay- ment of the interest, because both the assignor and assignee hold jointly; and both must elect. Cresco Realty Co. v. Clark, 128 App. Div. 144, 112 N. Y. Supp. 550. On assignment as collateral, both the assignor and assignee should join as plaintiffs in foreclosing. But if either refuses, he should be joined as a defendant, because the foreclosure is not complete without both being parties. Thomas on Mortgages (3d ed.), § 756. The non-production of the original bond and mortgage, is such notice as puts the assignee thereof on notice, and deprives him of the protection given by the Recording Acts to purchasers with- out notice. Kello^ V. Smith, 26 N. Y. 18. Assignment to one of two executobs. — When an assignment of a mortgage representing an investment of trust funds, is made to one of 756 PEACTICAL REAL ESTATE LAW. two executors, because the other is a nonresident and not acting; and both executors account, and are directed to pay the balance of the estate to themselves as trustees; upon the death of the one who was the as- signee, the title to the mortgage vests in the surviving trustee, and he can give a valid satisfaction piece. An assignment of a mortgage by a trustee, puts a purchaser on inquiry as to the terms of the trust instrument under "which he is acting, as possibly limiting his power to sell. If the con- sent of a beneficiary is necessary, a valid title cannot be con- veyed without it; and the beneficiary cannot ratify the sale after it is made. A purchaser from the trustee, must investigate his powers. Suarez v. De Montigny, 12 Misc. 259, 33 N. Y. Supp. 292, aff'd 1 App. Dlv. 494, 37 N. Y. Supp. 503, 153 N. Y. 678. Who can assign bond and mortgage. — If it came to the execu- tors as a part of the assets of the testator, one executor can assign the security, giving good title thereto ; but if it is taken by them as a part of the purchase money of a sale of the testator's real estate, or as an investment, they hold the security as trustees, and both must join in the assignment, in order to trans- fer the legal title. One executor can satisfy a mortgage in any case, however. Hertell v. Bogert, 9 Paige 52, rev'd on other grounds 4 Hill 492. An assignment by one of several executors, will be valid and effectual. Bogert V. Hertell, 4 Hill 492. The theory is, that the executors are esteemed in law as but one person representing the testator. But this rule does not ap- ply in the case of several trustees who are not executors., Chapin v. First Universalist Society, 8 Gray 580. Thomas on Mortgages (3d ed.), § 323. The assignment of a bond and mortgage given to three testa- mentary trustees as such, cannot be made by two of them, al- though the third is temporarily enjoined from acting. Such an assignment is valid only to the extent to which the estate ac- tually received the proceeds. Fritz V. City Trust Co., 72 App. Div. 532, 76 N. Y. Supp. 625, aflF'd 173 N. Y. 622. MORTGAGE. 757 A testamentary trustee has the power to assign a bond and mortgage before maturity, if by the terms of the trust, he has the authority to change investments at his discretion. Spencer v. Weber, 26 App. Div. 285, 49 N. Y. Supp. 687, aff'd 163 N. Y. 493, 57 N. E. 753. An assignment of a mortgage or judgment, can be made by one of two or more holders, if they are executors or partners; but not if they are trustees or individual owners. An assignment of a mortgage held by co-partners, can be made by a surviving partner. Pinckney v. Wallace, 1 Abb. Pr. 82. A special guardian taking a bond and mortgage on a sale of infants ' real estate, can assign it before it is due. No 'order of court is necessary; and a purchaser gets good title unless there is fraud or collusion. Tuttle V. Heavy, 59 Barb. 334. Field V. ^Scbieflfelin, 7 Johna. Ch. 150. Effect of recording. — The record of an assignment of a mort- gage is not constructive notice to the subsequent purchasers and encumbrancers of the land deriving title in good faith from the mortgagor; but is constructive notice to all persons claim- ing* a right under the mortgage by assignment or otherwise. Viele V. Judson, 82 N. Y. 32, 36. It is settled that, in the case of another than the mortgagor, the record of an assignment of a mortgage, is constructive no- tice to one desiring to make a payment on the mortgage. Assets Realization Co. v. Clark, 205 N. Y. 105, 98 N. E. 457. A recorded assignment of mortgage is notice to subsequent purchasers of the fee, that the mortgagee cannot release the property from the lien of it. Smyth V. Knickerbocker Life Ins. Co., 21 Hun 241, aflf'd 84 N. Y. 589. An assignment need not be recorded except as against a sub- sequent purchaser of the mortgage. A subsequent purchaser of 758 PRACTICAL EEAIj ESTATE LAW. the property is bound by a prior recorded mortgage, no matter wbo holds it. Curtis V. Moore, 152 N. Y. 159, 46 N. E. 168, aff'g 10 Misc. 431, 31 N. Y. Supp. 19. An assignment of a mortgage for full value, without notice of any release, takes precedence over an unrecorded release of a part of the mortgaged premises. Gibson v. Thomas, 180 N. Y. 483,. 73 N. E. 484. Baker v. Thomas, 61 Hun 17, 15 N. Y. Supp. 359. But a release takes precedence of an unrecorded assignment. The only effect of recording an assignment of a mortgage, is to protect the assignee from a subsequent sale of the same mort- gage. , Greene v. Wamick, 64 N. Y. 220, rev'g 4 Hun 703. A mortgagor is not chargeable with notice of the recording of an assignment of a mortgage. Eeal Property Law, § 271; Real Property Law, § 324. Ely T. Schofield, 35 Barb. 330, 335. But such record is constructive notice to the assignee of the mortgage. 'Mueller v. Goerlitz, 53 Misc. 53, 103 N. Y. Supp. 1037. An assignment of a mortgage can he demanded in lieu of a satisfac- tion piece, hy the owner. L. 1914, ch. 408, in effect Oct. 1, 1914, adding § 275 to the Real Property Law. Amended by L. 1915, ch. 493. 7. To building loan association. Security only for monthly payments. — ^A building loan as- sociation mortgage is a valid security only for the monthly pay- ments stipulated to be made; and not for fines and other dues. Hamilton Building Association v. Reynolds, 12 Super (5 Duer) 671. Contract with member creating relation of landlord and ten- ant. — ^A contract by a building loan corporation with a member, to let certain premises for twenty-one years, provided that th^ MORTGAGE. 759 member should pay a specified rent and certain other charges, and provided that on non-payment of rent for sixty days, the association should "have all the rights and remedies of a land- lord with respect to said premises. ' ' Held, that such a contract created the relation of landlord and tenant between the corpora- tion and the member, until the maturity of the shares; and that, in a proper case, the corporation might maintain summary pro" ceedings for the dispossession of the member. N. Y. Building Loan Banking Co. v. Keeney, 56 App. Div. 538, 67 N. Y. Supp. 505. 8. Clauses and terms. A gold clause in a mortgage is not a valid ground of objection by a purchaser, to the completion of an executory contract of sale subject to a specific mortgage (gold clause not disclosed), provided there was no deceit or misrepresentation. The con- tingency that the United States government will cease to main- tain the parity of currency, is too remote. Blanck t. Sadlier, 5 App. Div. 81, 38 N. Y. Supp. 817, 153 N. Y. 551, 47 N. E. 920. Hartigan v. Sinith, 19 App. Div. 173, 45 N. Y. Supp. 1012. Right of holder to add taxes. — Where the owner of the mort- gaged premises omits to pay the taxes and assessments imposed thereon, the owner of the mortgage, although there is no tax clause in the mortgage, may pay them and redeem from a tax sale, and add the amounts so paid to the mortgage debt; and he is not obliged to wait until the land is sold for the taxes. Sidenlierg v. Ely, 90 N. Y. 257. A mortgagee who has thus paid taxes or other moneys to protect his mortgage lierij has a lien ahead of an innocent purchaser for value, for the amount so paid. Therefore a purchaser of land subject to a mort- gage, should protect himself by procuring a statement from the mort- gagee, of the amount due on the mortgage, before he closes title. A thirty day mortgage tax clause is ground for rejection, where the contract calls for a mortgage to run for two and a half years. Groden v. Jaeobson, 129 App. Div. 508, 114 N. Y. Supp. 183. 760 PRACTICAL EEAL ESTATE LAW. Contract not stating mortgage contains tax clause. — ^A title cannot be rejected because of a mortgage stated in general terms in the contract, but without stating that it contains a mortgage tax clause. By having notice of the mortgage, the vendee is chargeable with notice of all that the record thereof contains, unless express representations are made in the contract, that the terms of the mortgage are different from what they are in fact. Schnitzer v. Bemstein, 119 App. Div. 47, 103 N. Y. Supp. 860. Period and rate of interest may be shown by bond. — ^A mort- gage may be shown by the bond to be for the period and at the rate of interest, stated in a contract for the purchase of the prop- erty subject to it, the record not showing these features. Halpern v. Fisch, 116 App. Div. 479, 101 N. Y. Supp. 1019. FiEE iNsuEANCE CLAUSE. — Under the terms of the title company form of mortgage, and under Real Property Law, § 254, suhd. 4, if the' mortga^gor fails to pay the fire insurance premium and the mort- gagee is obliged to do it, he can, after notice to the mortgagor to repay him, foreclose. Default in payment of interest or taxes not be taken ad- vantage of by mortgagor. — ^A clause that upon default in the payment of any interest, tax or assessment, the principal sum shall become due, is for the benefit of the mortgagee; and can- not be taken advantage of by the mortgagor, either to permit him to pay the debt, or to set the Statute of Limitations running against the mortgagee as to the principal of the mortgage. Quackenbush v. Mapes, 12S App. Div. 242, 107 N. Y. Supp. 1047, citing Jones on Mortgages (6th ed.), § 1210. Thomas on Mortgages (3d ed.), § 241. Oral agreement to change terms. — The terms of a purchase money mortgage cannot be changed to add an oral agreement by the mortgagee to make improvements benefiting the mortgaged property. Lafayette Trust Co. v. Richards, 81 Misc. 338, 143 N. Y. Supp. 483. 9. By corporations. Corporations formed under the act of 1848 (ch. 40), were pro- hibited from mortgaging their property, or giving a lien thereon. MORTGAGE. 761 This was modified by L. 1864, ch. 517,, by allowing such mort- gages on the written consent of stockholders owning two-thirds of the capital stock, filed in the county clerk's ofiice of the county where the real estate was. But such a mortgage is not invalid merely because such consent was filed in the wrong ofiice. Rochester Savings Bank v. Averell, 96 N. Y. 467. Foreign coepokatiows. — The present statute- is Stock Corporation Law (L. 1909, ch. 61), § 6; and it applies to foreign corporations as well as domestic ones. Consent of two-thieds of stockholdees. — Although a corporate mortgage is not consented to by two-thirds of the stockholders, a judg- ment of foreclosure and sale on it is conclusive on the corporation if it is a party; and a purchaser's title thereunder^ is good. A receiver of a corporation can set aside a mortgage made by it without the consent of the owners of two-thirds of the capital stock under L. 1864, ch. 517 and L. 1871, ch. 481. Vai] V. Hamilton, 85 N. Y. 453. A manufacturing corporation could not mortgage its real estate until L. 1864, ch. 517, and then only with the written con- sent of two-thirds of the stockholders filed in the county clerk's office. But such assent need not be filed before the mortgage is given; although the mortgage is not valid until such assent is filed. Greenpoint Sugar Co. v. Whitin, 7 Hun 44, aflf'd 69 N. Y. 328. The Stock Corporation Law (L. 1892, ch. 688), prohibits a mortgage by a stock corporation without the consent of the stockholders; but a purchase money mortgage may be given without such consent. Farmers' loan & Trust Co. v. Equity G-as Light Co., 84 Hun 373, 32 N. Y. Supp. 385. Benevolent corporation. — L. 1854, ch. 50 operates to prohibit the execution of a mortgage by a benevolent corporation without an order of court; and a mortgage executed without such order, is void. Dudley v. Third Order of St. Francis, 65 Hiin 21, 19 N. Y. Supp. 605, aflf'd 138 N. Y. 451, 34 N. E. 281. 762 PRACTICAL REAL ESTATE LAW. A purchase money mortgage by a religious corporation, does not require an order of the chancellor under 2 R. S., 210, § 11. "The church never owned the land, except subject to the mort- gage. It was a question of purchase, rather than of sale. The statute is only applicable to a case where the church is the owner of real property; and its object is, that the court may control the disposition of the proceeds, and prevent a misapplication of trust funds. ' ' South Baptist Society of Albany v. Clapp, 18 Barb. 35, 49. Same with membeeship cobpoeation. — The same with a purchase money mortgage by a membership corporation. A puECHASE MONET MOETGAGE is Only an extension of the vendor's lien; and the statutes relate only to land previously owned by the cor- porations. The consent of stockholders, as required by § 6, Stock Corpora- tion Law, is essential to make a mortgage legal and effectual. Leffert t. Jackman, 227 N. Y. 310. in New York state, mortgages, covering both real and personal property, given by corporations to secure the pajTuent of bonds, need only be filed as real estate mortgages, — ^not necessary to be filed as chattel mortgages. In re F. & D. Co., 256 Fed. Eep. 73. N. Y. Law Journal (editorial), June 3, 1919. =^ 10. Payment and discharge. By administrator or executor. — The county clerk or register cannot require proof of official capacity before satisfying a mortgage upon the certificate of an administratrix. The burden of establishing this identity is on the acknowledging officer. The theory is that the administratrix is responsible for her acts, to the estate, and the register cannot question them. Matter of Wadsworth, 27 Misc. 264, 57 N. Y. Supp. 911. The register must accept a satisfaction piece executed by a foreign executor; because he is a personal representative within the meaning of § 28 of the Recording Act (1. R. S., 761). People ex rel. Lewkowitz v. Fitzgerald, 29 Abb. N. C. 471, 21 N. Y. Supp. 911. * See also NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 6, p. 9, Bk. 19, p. 773, Bk. 26, p. 343. MORTGAGE. 763 An assignment, taken by the executor of a mortgagor, re- quired by will to pay it, constitutes a satisfaction thereof. Hetzel V. Easterly No. 1, 96 App. Div. 517, 89 N. Y. Supp. 154. A temporary administrator can, satisfy a mortgage. Possession by mortgagor presumption of payment.— A mort- gage and bond in the possession of the mortgagor for ten years, establishes a presumption that it is paid. Levy V. Merrill, 52 How. Pr. 360, aff'd 14 Hun 145. A mortgagor possessing a bond and mortgage for fifteen years, is very high evidence of payment. McMurray v. McMurray, 63 Hun 183, 17 K. Y. Supp. 657. And the possession of a mortgage by the mortgagee, is evi- dence that it is unpaid. Fitzmaiony v. Caulfield, 25 App. Div. 119, 49 N. Y. Supp. 196. The cancelation of a contract to secure which a mortgage is given, cancels the mortgage. Wanzer v. Gary, 76 N. Y. 526. Weeks v. Weeks, 16 Abb. N. C. 143, 151, 52 Super. (20 J. & S.) 519. The reissue of a dead mortgage (i. e., one paid without any in- tention at the time of payment, that it be kept alive), is in sub- stance a new mortgage; and not permitted by the Statute of Frauds, so as to give it validity as against a subsequent pur- chaser or mortgagee. Bogert V. Bliss, 148 N. Y. 195, 42 N. E. 582: When" a moetgage is paetiallt paid off^ without any intention of returning the payments, these amounts cannot he again added to the bond and mortgage. A mortgagee giving a quitclaim deed to the equity owner or mortgagor, will prevent an action to foreclose the mortgage. Nickell V. Tracy, 100 App. Div. 80, 91 N. Y. Supp. 287, rev'd on facts only 184 N. Y. 386. Discharge of mortgage by order of supreme court. — The vari- ous statutes are: L. 1862, ch. 365; L. 1868, ch. 798; L. 1873, ch. 551; L. 1882, ch. 100; L. 1882, ch. 278; L. 1884, ch. 326; L. 1898, 764 PEACTICAL EEAL ESTATE LAW. ch. 171; Former Real Property Law, § 270a; L. 1901, ch. 287; and Eeal Property L. §§ 322, 340-344. In such proceedings, all the statutory requirements must be complied with. Matter of Townsend, 4 Hun 31, app. dis. 63 N. Y. 631. Deposit with county clerk. — For the act authorizing the satis- faction of mortgages by depositing with the county clerk, see L. 1911, ch. 574, adding § 333 to Real Property Law. Assignment in lieu of satisfaction piece.— 4n assignment of a mortgage is now required in lieu of a satisfaction piece, if a previous demand is made on the mortgagee for it. L. 1914, ch. 408, adding § 275 to the Eeal Property Law, in effect Oct. 1, 1914. Record showiiig prior assignment. — The discharge of a mort- gagee is ineffectual, if the record shows a prior assignment by such mortgagee; and a searcher should not content himself with ascertaining the fact that a mortgage is discharged of record. Heilbrun v. Hammond, 13 Hun 474. ( While this is technically correct, it is not generally followed in prac- tice by title examiners, who never look farther than the discharge stamp on the margin of the record, unless something suspicious is discovered.)^ The discharge of a mortgage by the mortgagee after assign- ment, without payment, has no other effect .than to cancel the record of the mortgage. The validity of the mortgage is in no way affected; except that its priority over a subsequently re- corded deed, is taken away. Ely V. Scofield, 35 Barb. 330. By trustee. — A mortgage to a trustee is irrevocable until due ; and until then, the trustee cannot satisfy it. Wallace v. Berdell, 97 N. Y. 13, 25. McPherson v. Rollins, 107 N. Y. 316, 14 N. E. 411. Kirsch v. Tozier, 63 Hun 607, 18 N. Y. Supp. 334, aff'd 143 N. Y. 390, 38 N. E. 375. * If a mortgage is held iy several trustees, the satisfaction piece m,ust he executed hy all of them, whether the mortgage is overdue or not. The satisfaction of a testamentary trust mortgage before it is due, must be concurred in by all the trustees. Vohmann v. Michel, 185 N. Y. 420, 424, 78 N. E. 156. MORTGAGE. ' 765 But it can be executed by the acting one of two mortgagee trustees, where the other is in Europe, and inaccessible for sev- eral years. People V. Sigel, 46 How. Pr. 151. A satisfaction piece of a mortgage held by three executors and trustees, executed before the mortgage is due, by only one, is invalid to discharge the mortgage of record. People ex rel. Moscovitz v. O'Loughlin, 79 Misc. 650, 140 N. Y. Supp. 488. The record of a mortgage, notwithstanding an entry of its dis- charge in the record, may be constructive notice, if its satisfac- tion was not in execution of the trust, and was beyond the power of the trustee. McPherson v. Rollins, 107 N. Y. 316, 14 N. E. 411. Sears v. Palmer, 109 App. Div. 126, 95 N. Y. Supp. 1023. Assignments not required to be recited. — ^A satisfaction of a mortgage need not recite the various assignments. Real Property Law, § 321 does not require it. Where a mortgage is made to more than person^ the general ride is that it may be satisfied by any one of the holders; each of the mortgagees or assignees being regarded as the agent of the others for the purpose of collection and satisfaction. This rule fails, however, if the proportion ovmed by each mortgagee or assignee is stated in the mortgage or assignment to be a specified amount other than an undi- vided share. In such a case, all of the parties must satisfy, either by joining in one satisfaction, or by separate certificates. A satisfaction piece by one of several mortgagees as private persons, or as partners, or by one of several executors, or by a surviving trustee, is good; because the right to the money se- cured is personal; and the register must cancel the mortgage of record on the certificate of one such mortgagee. People ex rel. Eagle v. Keyser, 28 N. Y. 226, 235. People ex rel. Son v. Miner, 37 Barb. 466, 23 How. Pr. 223, reVg 32 Barb. 612. Where the mortgage was given to the testator, a satisfaction by one of two executors is sufficient to discharge the mortgage, and to authorize the cancelation of the registry thereof. Stuyvesant v. Hall, 2 Barb. Ch. 151. 766 PEACTiaAL EEAL ESTATE LAW. And when the mortgage is made to the executors as such, and to their survivors and successors (not to their personal repre- sentatives), one executor may receive payment, and satisfy the mortgage of record, as well as all; and the register is bound to enter the satisfaction. People ex rel. Son v. Miner, 37 Barb. 466, 23 How. Pr. 223. When the record discloses a question of fact as to which one of two assignees (under separate assignments) owns the bond and mortgage, the register cannot be compelled to satisfy the mort- gage on the certificate of one of them. People ex rel. Bennett v. Miller, 43 Hun 463. A satisfaction piece of record, can be demanded. It is not enough that the mortgage is paid, and that a satisfaction piece is given which the register refuses to take. Zorn V. McParland, 8 Misc. 126, 28 N. Y. Supp. 485, aflf'd 11 Misc. 555, 32 N. Y. Supp. 770, 155 N. Y. 684. If a satisfaction piece is vacated, intermediate bona fide pur- chasers are protected. Taylor v. Ranney, 4 Hill 619. Preparation and expense of satisfaction piece. — The mort- gagee cannot insist upon preparing the satisfaction piece and charging the mortgagor for it; but the latter may insist upon preparing it himself, and compel the mortgagee to execute it upon tendering him the twenty-five cents notary's fees under Code of Civil Procedure, § 3298. The mortgagee must give up. the bond and mortgage upon payment of the amount due; but he is not obliged to give up a satisfaction piece prepared by him, without payment of expenses. Krulder v. Hillman, 57 Misc. 209, 107 K Y. Supp. 727. But by almost universal custom in practice, the mortgagee or his at- torney, prepares the satisfaction piece, and charges the mortgagor or Owner for it. A satisfaction piece by the assignee of a mortgage assigned as collateral security only, may be good. I-owry V. Bennett, 119 Mioh. 301, cited 20 Am, & Eng. Encye. Law (2d ed.),. p. 1059. MORTGAGE. 767 A SATISFACTION PIECE BY THE TESTAMENTARY QUAEDIAN of an in- fant, appointed by the will of the deceased guardian (who died pos- sessed of the mortgage), is good. A SATISFACTION PIECE BY A coEPOBATE MOETGAqjEEj Certifying that the mortgage " is released hy the mortgagee; and it doth consent that the same be discharged of record/' is sufficient as " otherwise satisfied or discharged," under Real Property Law, § 321, even though the register refuses to satisfy on it. The glosek should obtain the oeiginal bond and mortgage^ on satisfaction. Taking a satisfaction piece from the holder of record of a mortgage, is protection against an unrecorded assignment. Pay- ing off a mortgage without requiring the production of the bond and mortgage, is at the peril of the payor. Assets Eealization Co. v. Clark, 205 N. Y. 105, 98 N. E. 457. Disafi&rmance by infant. — A satisfaction piece is a contract. An infant can disaffirm his satisfaction piece on coming of age ; but he must return the consideration. Foy V. Salzano, 152 App. Div. 47, 136 N. Y. Supp. 699. When a mortgage is stamped on the margin of the record " Discharged Sept. 12, 1913," and signed by the register; but the liber and page of the record of the discharge is not given; and the register cannot find either the original satisfaction piece, or the record of it, in his office; a new satisfaction piece should be obtained. Inability, neglect or refusal to produce original mortgage. — Discharge of a mortgage in New York city, under Real Property Law, §§ 322, 333. § 322 covers cases of inability to produce the original mortgage; while § 333 only covers eases of wilful neglect or refusal to produce it. Matter of Black, 150 App. Div. 532, 135 N. Y. Supp. 504. 11. Equitable revival of cut off mortgage. Where the owner of the equity buys in at a foreclosure sale, it is to be considered merely a redemption hy him; and any junior in- cumbrances or liens created hy him, and for which he is personally re- sponsible, still attach. And a purchase hy an attorney at law who ap- pears in the action, is deemed to be for the benefit of his client. 768 PRACTICAL REAL ESTATE LAW. The makeb of two moetgageSj by purchasing on a foeeclosube OF THE FiKST MOETGAGEj Cannot hold the land against the second mort- gagee, although the latter was a party. In equity, such a purchase is considered to be merely a payment of the first mortgage debt. A mortgagor who has made two mortgages, cannot cut off the second mortgage by purchasing on the foreclosure of the first one. ' ' When a mortgage debt is paid by one who is bound by contract to pay it, an assignment of it to him upon payment operates as a discharge, and he will not be allowed to hold it as a subsisting incumbrance. * * * Under this rule, a mort- gagor is not allowed, after having obtained a transfer of a first mortgage made by himself, to set it up against another mortgage of later date, which he has also made; and the rule applies equally in case he has obtained the first mortgage title by pur- chasing at a sale under the power." Jones on Mortgages (2d ed.), § 864. A purchaser at the foreclosure of a second mortgage, while a foreclosure of the first mortgage was pending, mortgaged the premises. Later, the premises were sold on the foreclosure of the first mortgage, cutting off the new mortgage. Upon the pur- chase at the second sale by the first purchaser, his mortgage, which had been cut off, was equitably revived, and was at least a cloud on the title. - ' Clark V. MeNeal, 114 N. Y. 287, 21 N. E. 405. One whose duty it is to protect a junior mortgagee, cannot pur- chase for his own benefit on the foreclosure of the senior mort- gage. Bennett v. Austin, 81 N. Y. 308. A mortgage, though cut off by foreclosure, is equitably re- vived, if the maker of it takes title from the referee. Brady v. Ainsworth. Realty Co., N. Y. County Court, N. Y. L. J., Sept. 26, 1912. The theory is that the mortgagor was the principal debtor, and the mortgage was given to secure his own bond; and the land was only secondarily liable. Had the equity owner who purchased, not been the original mortgagor, however, but had MORTGAGE. 769' only taken the title subject to a mortgage which, he assumed, the case would be different; for in that case, the land would have been primarily liable for the debt, and not a mere security for it. The assumption of the mortgage would not shift the primary lia- bility on the bond, to him, but was merely an indemnity in favor of the mortgagor against a deficiency. He could therefore hold such a mortgage against a subsequent incumbrance. Huntley v. EeVoir, 66 Hnin 291, 20 N. Y. Supp. 920. *12. Equities. "An equitable "mortgage may be constituted by any writing from which the intention so to do may be gathered, and an at- tempt to make a legal mortgage, which fails for the want of some solemnity, is valid in equity, ... an agreement for a mortgage is, in equity, a specific lien upon the land ... an equitable mortgage thus created, is entitled to a preference over subsequent judgment creditors." Payne v. Wilson, 74 N. Y. 348. Perry v. Board of Missions, 102 N. Y. 99, 6 N. E. 116. Hamilton Trust Co. v. Clemes, 163 N. Y. 423, 57 N. E. 614. Mortgage not negotiable. — "A mortgage like a note, payable to the payee only, is not negotiable, and is always subject to the defence existing between the original parties. ' ' Ingraham v. Disborougli, 47 N. Y. 421. Equity of redemption, socalled, is a misnomer. In this state the mortgagor has, both at law and in equity, been regarded as the owner of the fee; and the mortgage has been regarded as a mere chose in action, — a mere security of a personal nature. Trimm v. Marsh, 54 N. Y. 599. 13. Estoppel certificate. Defined; rights of purchasers.— An estoppel certificate is an. explicit declaration by a person, that he has no defense or setoff to the debt assigned. Any purchaser has a right to rely upon this statement and to claim the benefit of an estoppel in his ' See also NOTE, N. Y. Epts., Bender Annotated Ed., Bk. 5, p. 197. 49 770 PEAOTICAL EEAL ESTATE LAW. favor; and his right does not depend upon the real title or in- terest of his assignor; but is measured by the representation of the party who executed the estoppel. When such a declaration is made in writing by a mortgagor, it becomes a muniment of title, and may be conclusive in favor of third persons who give value on the faith of it, or whom it contributes to mislead. It depends upon the doctrine of estoppel, which Coke declares to be "an excellent and curious kind of learning." Weyh V. Boylan, 85 N. Y. 394, 397. ' ' One who purchases mortgages always does so at his perils like one who purchases other non-negotiable choses in action. He must inform himself accurately as to the title and value of the security he buys; and if he is deceived, he must look to the responsibility of the seller." Westbrook v. Gleason, 79 N. Y. 23, 32. 'Persons purchasing this class of securities (mortgages), can always protect themselves by inquiring of the obligors whether they are valid; and if they purchase upon the faith of the obligor's representations that the securities are valid, the latter would clearly by estopped from setting up the contrary. Where the purchaser neglects this precaution, he must be deemed as. taking the securities upon the credit of the assignor, as to their legal validity. Westfall V. Jones, 23 Barb. 9, 12. An estoppel certiflcate given after the transaction is com- pleted, is useless; because such a certificate cannot have in- fluenced the other party to his injury, — which is an essential requisite of an estoppel. Payne v. Burnham, 62 N. Y. 69. Assets Realization Co. t. Clark, 205 N. Y. 105, 98 N. E. 457. When not a corporate act.— An estoppel certificate in the shape of an affidavit by the secretary and treasurer of a corpora- tion, is not a corporate act; and may not bind the corporation,, even though it has the corporate seal. Home Trust Co. v. Bauchens, 151 App. Div. 416, 135 N. Y. Supp. 881. MORTaAGE. 771 Purpose for which taken.— It is taken on the assignment of a mortgage, as well to be sure of the indebtedness, as of the tech- nical status of the lien. Not to protect the title to the mortgage, but the security (the debt). Schafer v. Eeilly, 50 N. Y. 61. Quackenbusli v. Wheaton, 46 Misc. 357, 94 N. Y. Supp. 823. Westibrook v. Gleason, 79 N. Y. 23, 32. Weyh V. Boylan, 85 N. Y. 394, 397. An assignmeht of a mortgage can be eefuseb^ if it is not ac- companied BY AN ESTOPPEL CERTIFICATE from the owncT of the fee, and from all subsequent lienors; because the custom of furnishing these is so universal, that it may be read into the original contract to take the mortgage. One taken from the mortgagor by the mortgagee at the time of the execution of the mortgage, can have no other or greater effect than if the substance of it had been inserted in the form of a covenant in the mortgage ; in which case it would not amount to an estoppel. Wilcox T. Howell, 44 Barb. 396, aff'd 44 N. Y. 398. Precludes defense of usury. — An estoppel certificate, given on the assignment of a mortgage, precludes the defense of usury. Chamberlain v. Townsend, 26 Barb. 611, 7 Abb. Pr. 31. Real Estate Trust Co. v. Seagreave, 49 How. Pr. 489. Weil V. Fischer, 42 Super. (10 J. & S.) 32. Stoll V. Reel, 11 Misc. 461, 32 N. Y. Supp. 737. Weyh V. Boylan, 85 N. Y. 394. A mortgage executed only for selling, is enf orcible only for the amount for which it is sold, notwithstanding an estoppel certifi- cate from the mortgagor. It would be usurious for any greater amount. Verity v. Stermberger, 62 App. Div. 112, 70 N. Y. Supp. 894, aff'd 172 N. Y. 633. An estoppel certificate should be joined in by the wife of the owner, if the mortgage had no inception. If a mortgage with no inception is sold at a discount above the legal rate of interest, it is usurious and void; but a purchaser in good faith, relying 772 PRACTICAL REAL ESTATE LAW upon an estoppel certificate from the owner, is protected to the amount which he paid for it. Schanz v. Sotscheck, 86 Misc. 121, 149 K Y. Supp. 145, mod. 167 App. Div. 202. A mortgage without consideration in the hands of a mort- gagee because he has paid nothing for it, is effectual as against subsequent lienors, in the hands of a bona fide purchaser for value, to whom the mortgagee, with the authority of the mort- gagor, assigns it. Spicer v. First Nat. Bank, 55 App. Div. 172, 66 N. Y. Supp. 902, aflf'd 170 N. Y. 562. Mortgage in deed to evade power of sale.^ — A mortgage given by a grantee in a deed from executors under a power of sale, but which deed was actually given for the purpose of mortgag- ing, and to evade the power of sale, is valid in the hands of a bona fide purchaser for value who procures estoppel certifi- cates from the mortgagor and one of the executors. Eosenbaum v. Silverman, 22 Misc. 689, 50 N. Y. Supp. 860. Must be given when assignee pats foe moetgage. — In order to he of any ejfect, an estoppel certificate must he given at the time when the assignee pays for the mortgage. Even if promised at that time, hut given later, it is of no effect. An estoppel ceetificate by a coepoeation, is effectual. The in- strument under consideration in Home Trust Co. v. Bauchens, 151 App. Div. 416, 135 N. Y. Supp. 881, was the affidavit of two officers of the corporation, and not a corporate act. 14. Extension of time of payment. The extension of a mortgage with an assignee, without the knowledge of the mortgagor, relieves the latter from liability for a deficiency judement. Metzger v. Kova Realty Co., 160 App. Div. 394, 145 N. Y. Supp. 549, aff'd 214 N. Y. 26, 107 N. E. 1027. Wives need not execute. — Extensions of mortgages, as a matter of practice, need not he executed hy tlie wives of the owners of the land. Technically they should join; hut the risk is slight, — particularly since MORTGAGE. 773 it is extremely difficult to establish a consideration for an extension agreement. In most cases they are only morally enforcible. The worst that could happen would he that the wives could redeem, and pay the mortgage with interest at the old rate. The Recording Act covers an extension agreement. Weideman v. Zielinska, 102 App. Div. 163, 92 N. Y. Supp. 493. Consideration. — It must be based on a consideration or it is not enforcible. Metropolitan Life Ins. Co. v. Stimpson, 28 App. Div. 544, 51 N. Y. Supp. 226. If there is no other consideration for it than the continuance of the original terms, it is void for want of consideration. Title Guarantee & Trust Co. v. Weiher, 30 Misc. 250, 63 N. Y. Supp. 224. If there is no other consideration than a mere promise, it is unenforcible for lack of consideration. Olmstead v. Latimer, 158 N. Y. 313, 53 N. E. 5. It is invalid without a consideration which, however, need not be the payment of money, but can consist of mutual stipula- tions. Moser v. Walker, 23 App. Div. 91, 48 N. Y. Supp. 341. The extension of a five per cent mortgage, after maturity, at six per cent, is no consideration for the extension; because that rate was just what the mortgagor was then under legal obliga- tion to pay. Sands v. Gilleran, 159 App. Div. 37, 144 N. Y. Supp. 337. An extension in consideration of the payment of more than legal interest, even by an owner who is not liable to pay the mortgage debt, is usurious. Ganz V. Lancaster, 169 N. Y. 357, 62 N. E. 413, rev'g 50 App. Div. 204, 63 N. Y. Supp. 800. A bonus paid for an extension, does not make the mortgage usurious; but only makes the agreement for the extension void; and should be credited on the principal of the mortgage. Real Estate Trust Co. v. Keech, 7 Hun 253, aff'd 69 N. Y. 248. 774 PRACTICAL REAL ESTATE LAW. If the extension is based upon the consideration of the pay- ment of interest by a person who is not liable for the indebted- ness, it is enf orcible. Such is the payment by a purchaser from the mortgagor who does not assume the payment of the mort- gage. Krebs v. Carpenter, 124 App. Div. 755, 109 N. Y. Supp. 482. Without consent of sttbsequent incumbeancee. — Upon the ex- tension of a mortgage without the consent of a subsequent incumbrancer (whether he has subordinated, or otherwise), his only remedy is to pay off the mortgage and thu,s interfere with the investment. Grantee of mortgagor agreeing to pay debt.— An extension agreement with a grantee of the mortgagor, whereby he obli- gated himself to pay the mortgage debt, although not ordinarily so obligated, is valid and binding. Corporate Investing Co. v. Grace, Sup. Ct. Westchester County, Jan. 12, 1918 (unreported). Why valid. — ^An agreement for the extension of the time of payment of a mortgage, is valid and binding, because: 1st. the promises being mutual, the one is a consideration for the other. It is not necessary that there should be a parting with value, by payment or otherwise, And 2d, on the ground of estoppel against the mortgagee; because the mortgagor, in reliance on the mort- gagee's promise to extend, was induced to forego making pro- vision to pay off the mortgage. VeerhofF v. Miller, 30 App. Div. 355, 51 N. Y. Supp. 1048. Where a wife mortgages her separate property as security for her husband's debt, her position is that of surety; in which ease, if there be an extension of the time of payment without her assent, the mortgage is discharged. And if her title is of record, it makes no difference if the mortgagee did not in fact know that the wife owned the premises. Bank of Albion v. Burns, 46 N. Y. 170. An extension agreement with a new owner wholly releases the bondsman, unless, at the time of making the extension, the land was worth less than the amount of the mortgage; and the pre- sumption is against such depreciation. Feigenbaum v. Hiznay, 187 App. Div. 126, 175 K Y. Supp. 223. Murray v. Marshall, 94 N. Y. 611. MORTGAGE. 775 15. Mortgagee in possession. Possession not adverse. — ^A mortgagee in possession for twenty years, does not bar the right to redeem; because his pos- session, being- with the consent of the mortgagor, cannot be ad- verse as provided for by Code of Civil Procedure, § 379. A mort- gage is merely a lien; and a mortgagee in possession has no title on which to base adverse possession. Becker v. McCrea, 193 N. Y. 423, 86 N. E. 463, rev'g 119 App. Div. 56, 103 N. Y. Supp. 963, 48 Misc. 341, 94 N. Y. Supp. 20, also overruling Messinger V. Foster, 115 App. Div. 689, 691, 101 N. Y. Supp. 387. No presumption of payment. — ^A mortgagee in possession can- not be deprived of possession until the mortgage is paid; and while the mortgagee is in possession after default, no presump- tion of payment of the mortgage arises after twenty years. Becker v. McCrea, 149 App. Div. 211, 133 N. Y. Supp. 771, app. dis. 209 N. Y. 572, 103 N. E. 1121. Rents and profits not satisfaction of mortgage. — In the ab- sence of agreement, the receipt of rents and profits of mortgaged premises by a mortgagee in possession, to an amount sufficient to satisfy the mortgage, is not a legal satisfaction thereof. Hubbell V. Moulson, S3 N. Y. 225. Fee remains in mortgagor.^The title of the mortgagor of real estate is not changed by the mortgage. And although the mortgagee goes into possession by a surrender from the mort- gagor, the fee still remains in the latter. Sexton V. Breese, 135 N. Y. 387, 32 N. E. 133. A mortgagee in possession under a mortgage in the form of a deed, can convey good title to a purchaser for value without no- tice; but he will be held to have sold the premises to pay the debt, and must account to the mortgagor therefor. Mooney v. Byrne, 1 App. Div. 316, 37 N. Y. Supp. 388. A mortgagee in possession for twenty years, began proceed ings to foreclose by advertisement. Held, that this amounted to a recognition of the mortgage as a valid and subsisting lien; and 776 PRACTICAL REAL ESTATE LAW. an admission of the mortgagor's right to redeem; and that it was sufficient to authorize the filing of a bill to redeem and for an account of the rents and profits, although more than twenty years had elapsed. Calkins v. Calkins, 3 Barb. 305. A mortgagee in possession of leased premises, has a privity of estate with the landlord, and is liable to pay rent. Century Holding Co. v. Ebling Brewing Co., 185 App. Div. 292, 173 N. Y. Supp. 49. Code of Civil Procedure § 379 was amended by L. 1919, eh. 281, by omitting the word "adverse. >> 16. Participation agreement. The holder of the superior interest, is not a trustee for the holder of the secondary interest. The former can satisfy the mortgage without payment (although the agreement does not so provide), if it is for the benefit of the security. In this case, the mortgage was satisfied in order to place a new one ; and the expenses of placing the new mortgage were paid out of the pro- ceeds of the new loan. Lowenfeld v. Wimpie, 139 App. Div. 617, 124 N. Y. Supp. 178, aff'd 203 N. Y. 646. Junior participant entitled to foreclose. — The junior partici- pant in a participation mortgage is entitled to maintain fore- closure. Clare v. New York Life Ins. Co., 178 App. Div. 877, 166 N. Y. Supp. 95, rev'g 100 Misc. 308, 166 N". Y. Supp. 647. In a foreclosure by an assignee who had a title company form of ownership agreement, the contention that there were two owners of the bond and mortgage, and that both must elect that the mortgage become due, was held untenable. Corporate Investing Co. v. Gracehull Realty Co., 157 App. Div. 259, 142 N. Y. Supp. 131. For investments of trust funds in participation mortgages, see under trusts (Investment of trust funds). MORTGAGE. 777 17. Payment presumed after twenty years. Interest not paid and mortgagee not in possession. — A mort- gage in real estate, where no interest lias been paid, and the mortgagee has not entered into possession, is presumed, after twenty years, to have been discharged by payment or otherwise. Barnard v. Onderdonk, 98 N. Y. 158. Uncanceled mortgage sixty years old no objection to title. — A presumption arises that a mortgage is paid, after the expira- tion of twenty years from the time when the amount secured thereby becomes due. An uncanceled mortgage sixty years old, is not a valid objection to the title to the land covered thereby, when there is no evidence to rebut the legal presumption that it has been satisfied. Belmont v. O'Brien, 12 N. Y. 394. How rebutted. — The presumption of payment arising from lapse of time, cannot be rebutted,by mere proof of non-payment in fact; but it must be either (1) by proof of actual payment of part of the claim, or (2) by a written acknowledgment of the in- debtedness or of the right of action. Fisher v. New York, 67 N. Y. 73. Presumption may be invoked as to marketability of title. — A mortgage is presumed to be paid after twenty years; and such presumption may be invoked where the marketability of the title is in question. A purchaser on partition sale will be compelled to take title although the lands are covered by five mortgages un- satisfied of record; if all were due more than twenty years be- fore the date of sale, and there is no proof of any payment of principal or interest within that period. Ouvrier.v. Mahon, 117 App. Div. 749, 102 N. Y. Supp. 981. A purchaser in partition was relieved on account of an open mortgage recorded in 1830, where the only proof of its payment was an affidavit of the plaintiff's attorney that for ten years be- fore her death in 1887, the deceased owner claimed that the property was free from incumbrances. Mead v. Mead, 1 Silv. Sup. Ct. 368, 5 N. Y. Supp. 302. 778 PRACTICAL REAL ESTATE LAW. Uncanceled mortgage throws doubt on title. — The existence of an uncanceled mortgage, though presumed from lapse of time to have been paid, throws some doubt upon the title; because the mortgagee may have some promise to pay in his possession; or other facts may exist whereby the lien would be continued. PaBgbum V. Miles, 10 Abb. N. C. 42. See note to Belmont v. O'Brien, 12 N. Y. 394. A mortgage on which no interest has been paid for over twenty years, may nevertheless be foreclosed by advertisement; and an action to restrain the sale will not lie unless the com- plaint alleges and the proof shows, that the mortgage was ac- tually paid. This on the ground that the Statute of Limitations can be used as a shield, but not as a sword; and he who seeks the aid of a court of equity, must do equity by paying his debt. The Statute of Limitations in this state never pays or discharges a debt, but only affects the remedy. House V. Carr, 185 N. Y. 453, 78 N. E. 171, re^'g 105 App. Div. 625, 93 N. Y. Supp. 1135. • A bond outlaws in twenty years even though it contains a promise to pay until expressly released. Smith V. Wagner, 106 Misc. 170, 174 N". Y. Supp. 205. * 18. On personalty. A mortgage may embrace after-acquired personalty, of which the vendor retains the title until it is paid for undej a condi- tional sale. Washington Trust Co. v. Morse Iron Works, 106 App. Div. 195, 94 N. Y. Supp. 495, mod. 187 N. Y. 307, 79 N. E. 1022. Recorded as real estate mortgage.^A mortgage on personal property is a lien, "notwithstanding it was recorded only as a real estate mortgage. Such appears to be the effect of § 91 of the Lien Law." Washington Trust Co. v. Morse Iron Works, 106 App. Div. 195, 94 N .Y. Supp. 495, mod. 187 N. Y. 307, 79 N. E. 1022. •See also Griffin & Curtis on Chattel Mortgages (3d ed.). MORTGAGE. 779 The title to property covered by a chattel mortgage, is in the mortgagee; and it can only be divested by payment. Stearns v. Oberle, 47 Misc. 349, 94 N. Y. Supp. 37. Where filed. — ^A chattel mortgage must be filed in the town clerk's office of the town where the mortgagor resides; except that in case the county seat is in that town, it must be filed in the county clerk's office. Lien Law (L. 1909, ch. 38), § 232. A mortgage on a vessel is invalid unless recorded in the United States custom house. The provisions for so recording are in U. S. E. S., §§ 4192-4194. A mortgage covers all accessories to the realty, except where, by valid agreement with the mortgagee, the character of chat- tels is impressed upon the accessories. If vendors of personal property seek to mak See also Schouler on Wills (5th ed.) ; Heaton's Surrogates' Courts (3d ed.). 838 PRACTICAL REAL ESTATE LAW. 4. Finder's title. Good against all except ownee. — A finder's title to lost personal property is good as against all the world, except the rightful owner. But there are many exceptions to this rule, generally depending on the place of finding. Bills found in a safe deposit vault, belong to the safe deposit Company, except as against the rightful owner. Foster v. Fidelity Safe Deposit Co., 162 Mo. A. 165, 145 S. W. 139. Articles found buried beneath the surface of the soil, belong to the owner of the realty and not to the finder. Burdick v. Chesebrough, 94 App. Div. 532, 88 N. Y. Supp. 13. Money left on a public desk in a bank, was held to be for- gotten (not lost), and the finder had no title. Loucks V. Gallogly, 1 Misc. 22, 23 N. Y. Supp. 126. Merely mislaid articles are not lost; and the finder gets no title. McAvoy V. Medina, 11 Allen (Mass.) 548. Kincaid v. Eaton, 98 Mass. 139. Deaderick v. Quids, 86 Tenn. 14. Bills found in a bale of old paper in a paper manufactory, be- long to the finder, and not to the proprietor of the factory. Bowen v. Sullivan, 62 Ind. 281. Gold rings found in the mud at the bottom of a pool, belong to the owner of the premises. South Staffordshire Water Co. v. Sharman, 2 Q. B. 44. Bills found in a bank by the porter, belong to the bank. McDowell V. Ulster Bank. Co., 60 Alb. L. J. 346; an English case, cited in 19 Am. & Eng. Enc. of Law 582. Lost chattels found by a servant in the master's house, prob- aMy belong to the owner of the house. Mathews v. Harsell, 1 E. D. Smith 393. See also N. Y. L. J. (editorial), May 3, 1912. PERSONAL PROPERTY. 839 .♦ \ 5. Statutes. Personal Property Law (L. 1909, eh. 45), § 12, subd. 2 amended as to control of supreme court over gifts of personalty. L. 1909, eh. 144. § 13a added, as to care of cemetery lots. L. 1909, ch. 218. Amended by L. 1911, cb. 430. § 23 added by L. 1909, cb. 247. Provides for revocation of trust by creator, upon consent of all persons interested. § 16 amended by adding at tbe end a paragraph allowiug accumulations for charitable institutions. L. 1915, ch. 670. PETITION. (See Action.) PLEDGE. (See Mortgage.) PLOTTAGE. (See Real estate.) POLES. (See Telephone and Telegraph.) POLICE POWER. (See Advertising; Restrictive Covenants.) 840 PRACTICAL REAL ESTATE LAW. POSSESSION. (See Adverse Possession.) POSSIBLE CLAIM. (See Marketability.) POSTHUMOUS CHILDREN. (See Will.) POWER. 841 * POWER. (See Decedent's Debts; Election; Executors; Legacy; Suspension of Alienation; Trusts.) 1. In general. 2. Of appointment. 3. Delegation. 4. Presumption as to ex^cise of. 5. Of sale. 6. Consent to power oi sale. 7. In trust. L In general. Purpose; languages; to do what act.— A power may be created for any lawful purpose by any language wbicb. indicates an in- tention to bestow it; and to do any act which the grantor hinaself might lawfully do. Reynolds v. Denslow, 80 Hun 359, 30 N. Y. Supp. 77. "To the valid creation of powers, it is essential that there should be, first, sufficient words to denote the intention; secondly, an apt instrument, and third a proper object." 1 Sugden on Powers, 117. "We cannot conceive of a power without these three features, and the last is as essential as eithei^ of the others. A power without any purpose or object for which it is to be ex- ercised would be a solecism. ' ' Jennings v. Conboy, 73 N. Y. 230, 233. The power to apportion real property does not give the right to limit the estate for life, with remainder to issue, unless so ex- pressly stated in the power. Stuyvesant v. Neil, 67 How. Pr. 16. "A general power to dispose of property includes the right to dispose of it by will, unless the grant of the power contains words * See also Schouler on Wills (5th ed.) ; Heaton's Surrogates' Courts (3d ed.) ; NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 19, p. 362, Bk. 20, p. 404, Bk. 21, p. 1059, Bk. 23, p. 79, Bk. 26, p. 470, Bk. 31, p. 881, Bk. 32, p. 650. 842 PEACTICAL EEAL ESTATE LAW. which expressly or by fair implication exclude such a method of disposition." Matter of Gardner, 140 N. Y. 122, 127, 35 N. B. 439; General and beneficial power. — Where, under a deed, the grantees take a power to alien in fee by means of a will, and no persons other than the grantees of the power, have, by its terms, any interest in its creation, this is what is termed a general beneficial power. 1 R. S. 733, § 84 provides that where a general and beneficial power to devise the inheritance, shall be given to a tenant for life, such tenant shall be deemed to have the absolute power of disposition. Hume V. Randall, 141 N. Y. 499, 36 N. E. 402. \ A power is always imperative, when its subject, that is, the property given, and its object, that is, the persons to whom it is given, are certain. One D., by will, gave real estate to his daughter for life, with power to give same by deed or will, to any male descendant by the name of D., and his heirs. Held, that the power was imperative, and that it created a trust in behalf of the class designated; and, the donee of the power having failed to execute it effectually, the court must execute it in her behalf. It was decreed that all male descendants of that name, should take the property. Dominick v. Sayre, 5 Super. (3 Sandf.) 555. A power reserved in a deed to convey or devise to a future wife of the grantor, means a privilege only; and if the power is not exercised, the wife acquires no rights, and she cannot com- pel the execution of the power. Towler v. Towler, 65 Hun 457, 20 N. Y. Supp. 342, aff'd 142 N. Y. 371, 36 N. E. 869. A power is irrevocable, unless the power to revoke at is re- served in the instrument. Real Property Law, § 148. Matter of Merritt, 94 Misc. 425, 159 N. Y. Supp. 658. POWER. 843 2. Of appointment. A power of appointment as to real property, must be strictly followed; and its execution is governed by the principles of agency. Hillen v. Iselin, 144 N. Y. 365, 39 N. E. 368. Corporation considered person. — ^When the power is to give to "persons" by will, the appointer may designate a private cor- poration, which is a person in such a case. Farmers' Loan & Trust Co. v. Shaw, 127 App. Div. «56, 111 N. Y. Supp. 1118. A power of appointment given by will, may be exercised by giving to one, subject to a charge by way of payment of money in favor of" another. Monjo V. Woodhouse, 185 N. Y. 295, 78 N. E. 71. Limitations on absoluteness of enjoyment. — The appointment power is not "limited to a direct and absolute gift, but the*per- son exercising the power may place limitations upon the ab- soluteness of the enjoyment within the restrictions prescribed* by law" (as to suspensions). Maitland v. Baldwin, 70 Hun 267, 24 N. Y. SupJ). 29. But a power to apportion among certain persons, means a division of the fee ; and does not include the right to limit some of the class to a life estate. Stuyvesant v. Neil, 67 How. Pr. 16. The period during which the right of alienation may be sus- pended, must be computed "from the time of the execution of the power." Therefore when a woman who has a life estate under a trust deed, with a power of appointment by will, at- tempts by her will to devise the property to her executors in trust for the lives of her two children, with remainder over to their heirs or next of kin, there is an illegal suspension for three lives; and in this case, two of them were not in being at the time of the creation of the power. Genet v. Hunt, 113 N. Y. 158, 21 N. E. 91. 844 PRACTICAL EEAL ESTATE LAW. Unexecuted power does not prevent vesting of remainder.— The existence of an unexecuted power of appointment, does not interfere with the vjesting of the remainder. Former Real Prop- erty Law, § 31, provides: "The existence of an unexecuted power of appointment does not prevent the vesting of a future estate, limited in default of the execution of the power." Connony v. Connolly, 122 App. Div. 492, 107 N. Y. Supp. 185. Reference to power unnecessary.— A power of appointment is exercised by a will disposing of all the testator's property, un- less the contrary intention expressly appears. This applies to personal as well as real estate. No reference to the power of appointment is necessary. Lockwood V. iMildeberger, 159 N. Y. 181, 53 N. E. 803. A power of appointment may he executed by a will which does not refer to the power, but is shown to have been made in execution of it by a comparison of the dispositions of the will with the testator's own property (but not by the testator's parol declarations). ■ White V. Hicks, 33 K. Y. 383. Where a trust reserves a power of appointment by will of the grantor, an appointment will be effective, although made by a will executed a short time prior to the execution of the trust. United States Trust Co. v. Chauncey, 32 Misc. 358, 66 N. Y. Supp. 563. Beach on Wills, p. 149, § 83, note 2. A contract by the donee of a power of appointment in a will, to exercise it in a particular way, cannot be enforced in equity; and Real Property Law, §§ 167, 168 prohibit its execution by grant. - Farmers' Loan & Trust Co. v. Mortimer, 219 N. Y. 290^ 114 N. E. 389. 3. Delegation. Delegation of powers by executors is allowed where the act delegated is merely ministerial; but not where it is discretionary. F6rbe8 v. Reynard, 113 App. Div. 306, 309, 98 N. Y. Supp. 710. POWER. 845 While an executor and trustee under a power given him by a will, may not delegate the personal trust and confidence im- posed upon him, and must exercise the judgment and dis- cretion with which he has been invested, in the execution of the power; yet, having, with full knowledge of the facts, de- termined to sell real estate held by him as trustee, for a certain price, he may authorize his attorney to close the sale; and any contract entered into by the latter for the sale of the property at the price fixed, is valid and binding upon such executor and trustee. Gates V. Dudgeon, 173 N. Y. 426, 66 N. E. 116. A testator may delegate to any person the power to name an executor. — The provision of the Revised Statutes that the sur- rogate must issue letters to the person named in the will, means the person provided for by the will. Matter of Alexander's Will, 16 Abb. Pr. N. S. 9, aff'd 60 N. Y. 346. Hartnett v. Wandell, 60 N. Y. 346, 16 Abb. Pr. N. S. .383. 4. Presumption as to exercise of. The statute (1 R. S., 737, § 124), providing that a power is presumed to be exercised by an instrument not referring to it, relates only to an instrument which nowhere refers to the source of authority. If his authority is stated, it is presumed that he is acting under no other. Pollock V. Hooley, 67 Hun 370, 22 N. Y. Supp. 215. The omission to recite the power under which a deed is ex- ecuted, is not fatal. Former Real Property Law, § 155. But if there be a power and an interest existing together in the same person over the same subject, and an act be done without a particular reference to the power, it will be applied to the in- terest and not to the power. If there be any legal interest on which the deed can attach, it will not execute a power. Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324, 24 N. E. 177. Provisions of Revised Statutes apply to personalty. — The pro- visions of 1 R. S. 737, § 126, that "Lands embraced in a power to devise shall pass by a will purporting to convey all the real 846 PEACTICAL REAL ESTATE LAW. property of tlie testator, unless the intent that the will shall not operate as an execution of the power, shall appear, expressly or by implication," apply also to personalty. Hutton V. Benkard, 92 N. Y. 295. 5. Of sale. Passes to substituted trustee. — A power of sale given to execu- tors who are also clothed with a trust, passes to a substituted trustee appointed by the court, to the exclusion of an adminis- trator with the will annexed. Kortright v. Storminger, 49 Hun 249, 1 N. Y. Supp. 880. Forman v. Young, 166 App. Div. 815, 152 N. Y. Supp. 417, aflf'd 222 N. Y. 516, 118 N. K 1058. "While a mere power of sale is discretionary and does not sur- vive the donee of the power, it is otherwise when the power i& coupled with a trust. Then it is taken by the trustees, and through the court of equity may be transmitted to their suc- cessors in the trust." Lahey v. Kortright, 132 N. Y. 450, 456, 30 N. E. 989. A power of sale survives the duration of the trust, if there is a direction to distribute. Cusacik v. Tweedy, 56 Hun 617, 11 N. Y. Supp. 16, aflf'd 126 N. Y. 81, 26 N. E. 1033. A power of sale continues for distribution after the trust ceases. Matter of Prentice, 25 App. Div. 209, 49 N. Y. Supp. 353, aflf'd 160 N. Y. 568, 55 N. E. 275. Faile v. Crawford, 30 App. Div. 536, 52 N. Y. Supp. 353. A power of sale is implied by a trust with provisions that the executors shall "pay over" to the beneficiaries their parts or portions of the estate. A provision exempting purchasers from liability for application of the purchase money, is significant, as implying a power of sale. Burnham v. White, 117 App. Div. 515, 102 N. Y. Supp. 717. A POWEE OP SALE IW A WILL IS NOT IMPLIED BY A DIRECTION TO DI- VIDE. — But in a proceeding under Code of Civil Procedure, § 2615, POWER. 847 upon notice and proper evidence, the arrogate could decree an implied power of sale. Before the Revised Statutes a power of sale in a will did not survive to the survivors on the death of one of their number, if the power was not coupled with an interest, imless the trusts in the will required a sale. Franklin v. Osgood, li Johns. 527. Lien or charge on land. — ^A power of sale is made a lien or charge on land, by 1 E. S., 735, § 107. But this has no applica- tion when the power of sale has ceased to operate, and is of no practical use by reason of an election by the beneficiaries to take the land as land; because equity could not interfere to compel the execution of the power, since its purpose has been ac- complished without its exercise. Prentice v. Janssen, 79 N. Y. 478. The absolute power of disposition in former Eeal Property Law, § 129, does not include a limited power of disposition; and the provision in § 133 that every power of disposition etc., is deemed absolute, does not mean that the grantee shall have the fee; but only that the power to dispose of the entire fee shall be absolute. Hasbrouck v. Knoblauch, 130 App. Div. 378, 114 N. Y. Supp. 949. A power to convey by a trustee who is also a remainderman, is not exercised by his individual deed, because it can only be held to convey his remainder. The provisions of the Eevised Statutes, followed by former Eeal Property Law, § 155, do not apply to such a case, because the trustee has an undivided in- terest. MeroUa v. Lane, 122 App. Div. 535, 107 N. Y. Supp. 439. A power of sale on and after a certain date, being a mere naked power, does not suspend the power of alienation, and is valid. Blanchard v. Blanehard, 4 Hun 287, aff'd 70 N. Y. 615. A power of sale can be exercised after the time within which it is limited, if the power is imperative. Mott V. Ackerman, 92 N. Y. 539. Spitzer v. Spitzer, 38 App. Div. 436, 56 N. Y. Supp. 470. 848 PEACTICAL EEAL ESTATE LAW. After expiration of leeise. — ^A power of sale after the expira- tion of a lease, becomes immediate when no lease exists. Furst V. Bohl, 133 App. Div. 627, 118 N. Y. Supp. 125. Lien of judgment against owner. — ^A judgment against the owner of real estate which is subject to a power of sale, is a lien until a sale is made under the power; whereupon the lien be- comes relegated to the proceeds of sale. Sayles v. Best, 140 N. Y. 368, 35 N. E. 636. Aekerman v. Gorton, 67 N. Y. 63. Eiankine v. Metzger, 69 App. Div. 264, 74 N. Y. Supp. 649, aflf'd 174 N". Y. 540. A mandatory power of sale in a will which is dependent upon void provisions therein, does not operate as an equitable con- version. Read V. Williams, 125 N. Y. 560, 571, 26 N. E. 73D. There is no repugnancy between a power to sell and a power to trust or divide. — When the power exists for any purpose, a bona fide purchaser is protected, no matter for what purpose it is in fact exercised. Conover v. Hoffman, 14 Super. (1 Bosw.) 214, aff'd 15 Abb. Pr. 100, 1 Abb. Ct. App. Dec. 429. When the donee of a power coupled with an interest, sells without reference to the power, it is a question of intention as to whether the conveyance was in pursuance of the power, or only the grant of an interest. But when such a conveyance was by full covenant and warranty deed, and for a full considera- tion, this shows an intention to exercise the power to convey the fee; and all the remaindermen are cut off thereby. Vines v. Clarke, 111 App. Div. 12, 97 N. Y. Supp. 532. If the donee of a power to sell land, has an interest therein in his own right, apart from the power, a deed executed by him containing no reference to the power, will convey only the donee's individual interest. Weinstein v. Weber, 58 App. Div. 112, 68 N. Y. Supp. 570. See also under executors. POWER. 849 An unlimited power of sale is not inconsistent with a ctevise of a vested interest in the property. Forman v. Young, 166 App. Div. 815, 152 N. Y. Supp 417, aff'd 222 N. Y. 516, 118 N. E. 1058. May co-exist \yith estate devised in fee.— A general testa- mentary power of sale may co-exist with an estate devised in fee. Matter of Bielby, 91 Misc. 353, 155 N. Y. Supp. 133. Imperative power of sale. — Where there is an imperative direction to sell in a will, effecting equitable conversion, the fee vests in the trustee; and the beneficiaries are not necessary parties, to either a foreclosure or partition action. Graham v. Livingston, 7 Hun 11. Salisbury v. Slade, 160 N. Y. 278, 54 N. E. 741. Eisner v. Curiel, 2 App. Div. 522, 37 N. Y. Supp. 1119. 1 R. S., 734, § 96 provides: "Every trust power, unless its execution or non-execution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity, for the benefit of the parties interested. ' ' A power of sale is not a power to exchange. Trimboli v. Kinkel, 226 N. Y. 147. A fiduciary can only sell real estate for money j or money and a pur- chase money mortgage, without specific authority to do so expressly given in the power. A power of sale in a will reads: " It shall only be sold and conveyed under order of the court authorizing them to do so." In New Yorh State real estate can only he Sold under this, after proceedings under §§ 105-lOY, Beal Property Law. 6. Consent to power of sale. Must be expressed in or with instrument. — ^A consent to a power of sale, where required, must be expressed in the instru- 54 850 PEACTICAL REAL ESTATE LAW. ment by which the power is executed, or certified in writing thereon. i , ,, . , 1 R. S., 736, § 122. Former Real Property Law, § 153. Barber v. Cary, 11 N. Y. 397. Guliok V. Griawold, 160 N. Y. 399, 54 N. E. 780. Correll v. Lauterbach, 14 Misc. 469, 36 N. Y. Supp. 615, aff'd 12 App. Div. 531, 42 N. Y. Supp. 143, 159 N. Y. 553, 54 N. K 1089. Beal Property Law, § 173, happens to omit the word " thereon " after " certificate" which word was contained in former Beal Property Law, § 153. But this does not change the construction; iecav^e it was not intended by the Consolidated Laws to change the earlier statutes. See L. 1909, ch. 596, regulating the construction of the Consolidated Laws. Death of persons whose consent required. — The Revised Statutes did not change the common-law rule to the effect that where a power was to be executed with the consent of third per- sons, such consent must be obtained in order to make a valid execution of the power; and the death of one of such persons, without having given his consent, rendered its execution im- possible. . Barber v. Cary, 11 N. Y. 397. This was changed, however, by former Real Property Law, § 154. But thrs section was not retroactive in its effect. Gulick V. Griswold, 160 N. Y. 399, 54 N. E. 780. Since Oct. 1, 1896 the consent of the survivors has been suf- ficient. Former Real Property Law, § 154. Real Property Law, § 174. 7. In trust. Execution by court of equity. — When a power in trust is un- executed, and the donee thereof has died, the statute provides that the execution of it be decreed by a court of equity for the benefit of all persons designated as objects of the trust. 2 R. S., 734, §§ 99, 100. Shannon v. Pickell, 55 Hun 127, S N. Y. Supp. 584. Shares, when disposition directed to be made to several per- sons. — 1 R. S., 734 provides that where a disposition under a POWER. 851 power is directed to be made to or between several persons, without specifying the share of each, all shall be entitled to equal portions. Conner v. Watson, 1 App. Div. 54, 37 N. Y. Supp. 71. On the death of the holder of a power in trust, the supreme court can appoint a new trustee (the same as a regular trustee), under former Real Property Law, § 91, now Real Property Law, §111. The successoe of a donee of a testamentary power in trust, can he appointed hy the surrogate. The sole beneficiakt of a powee in teust^ can waive the exer- cise of the power of sale hy the trustee, and elect to take the latid as land. A power in trust is not revoked by the death of the grantor. It is irrevocable, unless an.thority to revoke it is reserved in the instrument. Cutler V. Winberry, 179 App. Div. 221, 166 N. Y. Supp. 627. See also under Executors (Power of sale). PRACTICABLE. (See Construction.) PRE-EMPTION. (See Water, Patents.) PREJUDICE. (See Construction.) PREMISES. (See Construction; Real Estate.) 852 PEACTIGAL REAL ESTATE LAW. PRESCRIPTION. (See Adverse Possession.) * PRESUMPTION. Of continuance of existing facts. — "When the existence of a person, a personal relation or a state of things, is once estab- lished by proof, the law presumes that the person, relation or state of things, continues to exist as before, till the contrary is shown, or till a different presumption is raised, from the na- ture of the subject in question. The opinions, also, of in- dividuals once entertained or expressed, and the state of mind once proved to exist, are presumed to remain unchanged, till the contrary appears. Thus, a person proved once to have ex- isted, is within certain limits, presumed still to exist. A part- nership once established, will be assumed to continue; and where derangement, or imbecility of mind, has been shown, its continuance is, in like manner, presumed until -the contrary is proved. ' ' Sleeper v. Van 'Middlesworth, 4 Denio 431, 433. Stronger will prevail,— Where there are coniflicting presump- tions of unequal weight, the stronger will prevail; and the one which has the least probability to sustain it, must yield to- the more probable one. Palmer v. Palmer, 162 N. Y. 130, 56 N. E. 501. Presumption of a lost grant, in order to presume that trustees Avho conveyed acted knowingly and within their trust powers, not indulged in, without proof of twenty years adverse posses- sion. Kellum- V. Corr, 149 App. Div. 200, 133 N". E. 784, affd 209 N. Y. 486, 103 N. E. 701. *See also Chamberlayne, llodern Law of Evidence; NOTE, N. Y. Rpts., Bender Annotated Ed., Bk. 9, p. 127, Bk. 26, p. 205.