Probate Lawyers said the action by Y against BN for specific performance of a contract to purchase real property. Defendant obtained judgment, which was affirmed by the general term. Plaintiff appeals. Affirmed.
This action was brought to compel the specific performance of a contract to purchases land. The defense was that the title was not merchantable. D was the owner of a tract of land in the city of Brooklyn comprising the land in question. On the 11th day of March, 1854, he conveyed the same to J and G. On the 26th of September thereafter they conveyed the same to H by separate deeds, each of an undivided half, which were identical in form, containing the same recitals.
A New York Estate Lawyer said that the quotations hereinafter made are taken from the J deed. It contained the following: ‘Whereas, the said J and G afterwards by deeds sold and conveyed certain portions of the entirety of the premises hereinafter described to TN, WA, and BY by separate deeds of conveyances, and took back from the said TN, WA, and BY, severally, bonds and mortgages for the respective payments of the several sums therein mentioned as securities, and for the purchase moneys thereof, reference to the several deeds being hereunto had will more fully appear; and whereas, the party of the second part has agreed to purchase of the said J his portion of the entirety of the premises hereinafter mentioned, subject, however, to the several equities aforesaid.’
New York City Probate Lawyers said that when follow the ordinary provisions of a deed, with a description of the premises, after which appears the following: ‘Nevertheless, it is hereby understood, by and between the parties hereto, that the said J, as far as in him is, not only conveys his right, title, and interest in and to the premises aforesaid, but hereby sells, assigns, and confirms, unto the said H, all and singular the said bonds and mortgages, as far as the majority of his interest in the premises aforesaid attaches, made by the said TN, WA, BY, to him, the said J, and the said G, for security on their said several purchases of portions of the property aforesaid, and all his right and interest therein and thereto, so that the said H shall stand in every respect and particular, regarding the aforesaid property, in the place and stead, and with the rights and title therein, of the said J.’ H subsequently conveyed the premises to T, who conveyed to SH, who died leaving a last will and testament, which was duly admitted to probate, whereby he appointed E executor, with full power of sale. E, as executor, sold to K, but he refused to complete the purchase by reason of the recitals in the H deed to which we have already called attention.
Manhattan Probate Lawyers said that thereupon, and on the 12th day of June, 1869, an action was brought to compel him to accept title. An answer was interposed, and a reference was had to OS to take proof of the facts and circumstances at issue in the case, and to report the same, with proofs and testimony taken before him, to the court. He thereupon made his report, and afterwards, and on the 16th day of June, 1869, judgment was entered in which it was adjudged and decreed that the objections of the defendant to the title to the lands be overruled, it appearing that the recitals in the deeds set forth in the answer are misrecitals, and are not true; that no deeds were ever given to TN, WA, and BY by G and J, or either of them; that executory contracts made with said persons were canceled and surrendered to H, the grantee of said J and G. It was further ordered and adjudged that K specifically performs his contracts. Thereupon K took title, and conveyed the same to the plaintiff.
The lands in question are vacant, having never been occupied. The plaintiff’s title is such only as H obtained through his deeds from J and G. Those deeds do not purport to convey the absolute fee to H, but specifically reserve that conveyed to TN, WA, and BY, and provides that H ‘shall stand in every respect and particular regarding the aforesaid property in the place and stead, and with the rights and title therein,’ of J and G. It is claimed that an examination of the register’s office in the county of Kings fails to disclose any record of the deeds to TN, WA, and BY; that the recitals in the deeds only amount to constructive notice, and cast upon the purchaser the duty of ascertaining from the records the extent and nature of their conveyances; and that, inasmuch as the record disclosed nothing, the purchaser took absolute title in fee.
The question thus presented is not free from difficulty, but we incline to the opinion that the rule thus invoked does not and should not extend to the case under consideration. as we have seen, the H deed specifically reserves therefrom the lands conveyed to TN, WA, and BY, ‘reference to their several deeds being thereunto had will more fully appear.’ H would not, therefore, under the deed take any title to that which had previously been conveyed to these parties. True, those deeds do not appear to have been recorded. They, however, may be in existence, and may hereafter be produced for record, and, if they should, we do not understand that there is anything in the provisions of the recording act that would prevent the grantees therein named from claiming the lands described in their deeds.
Conveyances not recorded are void as against subsequent purchasers in good faith and for a valuable consideration of the same real estate, or a portion thereof, but, if the purchaser has notice of such unrecorded deed, he cannot claim the benefits of the act. Here the recitals in the H deeds give notice of the existence of such unrecorded deeds. The case of Dow v. Whitney, 147 Mass (16 N. E. Rep. 722), also relied upon by the appellant, does not appear to be in point. In that case the deed contained a specific description of the granted premises, and then concluded by stating that they were the same premises that were conveyed to the grantor by a certain deed which conveyed a larger tract, and then recited that the conveyance was of all the land conveyed by that deed, except such portions thereof as the grantor had theretofore sold.
It was held that the recital did not operate to alter the description or limit the prior granting clause of the deed, but was a reference merely to the grantor’s chain of title. The defendant is entitled to a marketable title free from reasonable doubt. The records of the register’s office do not show such a title. Its validity depends upon the determination of the fact as to whether deeds were in fact given to TN, WA, and BY, and the rule is that specific performance will not be decreed when the title depends upon a disputed question of fact outside of the record about which there is reasonable doubt, when the parties interested in such determination are not before the court. The judgment should be affirmed.
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