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Newton v. Evers

Supreme Court of New York, Appellate Division

March 8, 1911

GEORGE M. NEWTON, as Administrator, etc., of ELIZABETH NEWTON, Deceased, Appellant,
v.
JESSE EVERS and Others, Respondents, Impleaded with MARY E. HARTMAN and Others, Defendants.

Page 674

APPEAL by the plaintiff, George M. Newton, as administrator, etc., from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Erie on the 12th day of August, 1910, upon the decision of the court rendered after a trial at the Erie Special Term, dismissing the the complaint upon the merits as to said defendants.

COUNSEL

W. S. Thrasher and J. L. Hurlbert, for the appellant.

Frank C. Ferguson, for the respondents Kruse and Ferguson.

D. N. McNaughton and Willard W. Saperston, for the respondent McKenzie.

SPRING, J.:

This action is to foreclose a mortgage. On the 17th of September, 1884, one Woodward conveyed to William Blakely about twenty-seven acres of land in the town of Evans, in Erie county, for the consideration of $1,500. He took back a purchase-money mortgage for $1,000, and Blakely paid him $500 in cash. In the fall of 1885 lunacy proceedings were commenced, and Blakely was adjudged a lunatic September twenty-fourth of that year, and the jury by their inquisition found that the lunacy commenced prior to the delivery of the deed mentioned. John Vellum was appointed committee of the person and estate of the lunatic. On the 16th day of September, 1885, and before the adjudication was determined, Vellum executed a deed purporting to be made by him as committee to Woodward of the premises mentioned. Woodward discharged the mortgage for $1,000 which had been given to him by Blakely and executed a mortgage to Vellum as committee for the sum of $500, which he subsequently paid. This transaction, as the court has found, was with the evident purpose of undoing what had been

Page 675

done by the deed from Woodward to Blakely. The court further finds: 'That thereupon as a part of this attempt to undo what had been done, the said Woodward satisfied the mortgage of $1,000 which had been given to him by Blakely and to secure the payment of the $500 in purchase money which Blakely had paid him, executed and delivered to the committee a mortgage on the property for $500.'

Vellum, after his appointment as committee, reacknowledged the deed purporting to be made in that capacity. Of course Vellum exceeded his authority in executing this deed and in carrying out this transaction, but it will not be disregarded by a court of equity when called upon to adjust the rights of the parties. Woodward supposed he was revested with the title, and he so acted. On September 16, 1886, he conveyed to Louisa J. Kinner these premises, which deed was recorded in October. August 5, 1887, Mrs. Kinner and her husband conveyed to Jesse Evers, who gave back a purchase-money mortgage for $1,500, and that is the mortgage which the plaintiff as owner by assignment has attempted to foreclose; and a bond accompanied this mortgage.

Conveyances were made in the line from Kinner until the title became vested July 21, 1888, in John Henry and Helena Kruse, each grantee assuming and agreeing to pay the bond and mortgage as part of the purchase price. The Kruses conveyed to Drefs and Cook by warranty deed without reference to the mortgage in suit, and Drefs and Cook in August, 1889, conveyed by quitclaim deed, with covenants against grantor, to Julia E. Ferguson, the present respondent, and there was no consideration for this deed, which was recorded.

This business was transacted for Mrs. Ferguson by her husband as her attorney, and he stipulated on the trial that he acted for her in all these transactions. Mr. Ferguson was familiar with the history of the line of conveyances and the mortgages above described.

Drefs, in narrating the transaction with Ferguson, and his evidence is undisputed, testified: 'Ferguson said, 'Although you have a warranty deed to the property, you have not title, because there is a crazy man in that.' He says that he could not give title to that property, said there is also a mortgage of ...


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