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April 29, 1942


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

The government has deposited $3,500 in the Clerk's office as the estimated value of damage parcel No. 6, and this is a motion for distribution. The government claims the entire sum by virtue of four judgments which it recovered against John S. Wirsing, the record owner when each judgment was docketed in the office of the County Clerk of Kings County, namely: Date of Filing in Date of Judgment County Clerk's Office Amount March 3, 1939 October 20, 1939 $1,500.00 April 18, 1939 October 29, 1939 1,500.00 March 3, 1939 March 15, 1940 1,500.00 December 12, 1939 March 15, 1940 1,500.00

Wirsing had justified as surety upon certain bail bonds given in this court, and a forfeiture having been declared as to four defendants, the judgments ensued as listed.

 George Meyers, son-in-law of Wirsing, inherited the property from his mother who died intestate, prior to February 28, 1934; on that date he executed and delivered a deed to Wirsing, without consideration, which was duly recorded on May 17, 1934.

 The record ownership continued in Wirsing until December 3, 1940, when a deed from him to Meyers, dated October 1, 1935, was recorded.

 The declaration of taking title herein was filed on December 18, 1940.

 Meyers claims the amount on deposit as the actual owner of this damage parcel.

 Of the four judgments listed, it appears that but one, recovered April 18, 1939, and docketed October 29, 1939, resulted from the forfeiture of a bail bond in connection with which Wirsing justified as the owner of damage parcel No. 6. There were twnety-eight other bonds based upon similar justification, but forfeiture and resulting judgment ensued only as to this one, in which one Vito Bello was the principal.

 According to the testimony, Meyers executed the 1934 deed to Wirsing, who was engaged in bail bond business, because Meyers had himself attempted to justify as surety in the Magistrates Court without success, because he could not produce a deed running to him to this property, since he had derived title through intestate succession to his mother. Apparently he thought, that by conveying to Wirsing and then getting a deed back from the latter after a brief interval of time, he would be in possession of the kind of instrument that would enable him to justify as surety, should the occasion arise. At least, that was his story on the witness stand. He said that he told Wirsing that, if the latter could make a few dollars while he held the record title, by justifying as owner of the property, Meyers had no objection.

 The change in record ownership was not intended or treated by the parties as effecting any change in the actual ownership of the property, because Meyers continued to collect the rents, pay the taxes and insurance premiums, and make repairs and alterations in the property; that is to say, he remained in possession as the landlord but did not physically occupy the property, and Wirsing received no portion of the rent, nor did he assume any of the burdens of ownership. The evidence does not demonstrate that Meyers participated in the proceeds of Wirsing's bail bond business in any definite or ascertainable respect. In other words, throughout the entire period involved Meyers was the equitable owner of the property and could have procured a decree of reconveyance by Wirsing, had the latter refused to comply with his request for a deed. Whitaker v. Westberg, 215 App.Div. 785, 213 N.Y.S. 935, affirming 124 Misc. 556, 208 N.Y.S. 638.

 About October 1, 1935, Meyers gave an option to a proposed purchaser, and requested a deed for reconveyance from Wirsing, which the latter executed and acknowledged on that date in the office of the attorney who prepared the original deed, one Ryan, who was not called as a witness. He requested Ryan not to record the deed at once, saying: "You can't record this deed; I got a bond on it." Ryan said: "All right; I will leave it in my safe."

 Since it was the mutual understanding of the parties that Meyers would need the deed if he was to sell the property under the option, it seems fair to conclude that this was a delivery of the deed from Wirsing to Meyers, Ryan being the agent of Meyers to receive delivery. To hold otherwise would require that the transaction be ignored in legal effect.

 It is true that between November 1, 1935, and June 6, 1938, both dates inclusive, Wirsing justified as surety upon twenty-eight bail bonds in this court, stating in his affidavit of justification that he was "the sole owner of the real estate, No. 89 High Street, County of Kings", referring to the deed from Meyers dated February 28, 1934, as the source of his title. It could be plausibly argued that such a course of conduct was inconsistent with an intention to make delivery of the deed on October 1, 1935, but Wirsing's conduct is presently deemed to have been intended by him as a misrepresentation to the government, rather than as evidence that he had not made delivery of the deed to Meyers.

 The matter is not as important as it might seem to be, for the reason that, as between Wirsing and Meyers, the latter was at all times the equitable owner of the property, and the lien of the four judgments upon which the government relies could not attach to property of which Wirsing was not the true owner. The cases are quite clear, that the lien of a judgment by virtue of section 1251 of the Code of Civil Procedure, now Section 510 of the Civil Practice Act, takes effect only on the actual interest of the judgment-debtor in the land, and is subject to prior equities; so much is stated in the concurring opinion of Judge Miller in LaFayette Trust Co. v. Beggs, 213 N.Y. ...

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