Nelson D. Morehouse v. Joel B. Morehouse et al.

Decided Nov., 1882.

J. M. in 1860 devised a farm equally to his sons J. B. and T., subject to his debts. It was mortgaged at the time of his death. The sons divided the farm and each went into occupation of his part. Plaintiff in 1861 purchased this mortgage upon an understanding with the sons that there should be a sale under it and that each should pay half the price bid. The sale was made under a foreclosure by advertisement and the premises sold to the sons. Plaintiff prepared the affidavits of sale and delivered

them to one D., in escrow, to be delivered when the bid was paid. T. paid his share of the bid; J. B. did not. In 1868, without plaintiff's knowledge or consent, the affidavits of sale were recorded and plaintiff now asks their cancellation and that he be allowed to foreclose under the mortgage on J. B.'s part of the farm for his unpaid share of the mortgage debt. Held, That there was no sale; that the lien of the mortgage remained and plaintiff was entitled to the relief asked.

One John Morehouse died in 1860 and left a farm to his two sons, Joel B. and Talcott. He left debts. The sons divided the farm and each took half. There was a mortgage on it. Plaintiff purchased this in 1861 upon an understanding with the sons that there should be a sale under it, which would be | a more rapid way for the sons to get title than by a surrogate's sale. Each son was to pay half the bid, whatever it was. Plaintiff foreclosed by advertisement in October, 1861, and sold to the sons. There was no written contract of sale. Plaintiff prepared the usual affidavits and retained them, and about January, 1864, delivered them in escrow to one Dake to be delivered when the amount of the bid should be fully paid.

In 1868 these affidavits were recorded without plaintiff's knowledge or consent. Plaintiff, as he says, did not know of this fact until 1872 or 1873, though one of the defendants testified that he told plaintiff of it at the time. One son has paid his share of the bid. The other, Joel B., has not, as the General Term find. Plaintiff asks a cancellation of the record of the affidavits of sale and that he may be allowed to foreclose the mort

gage as to the part of the farm occupied by Joel B., not affecting the part of Talcott. At Special Term the complaint was dismissed on the ground of the six year statute of limitation and because Joel B., as the justice found, had paid his share of the bid.

A. Pond, for respt.
J. C. Hulbert, for applt.

Held, That assuming Joel B.'s share was unpaid (as found by this court) the action could be main tained. To the extent of the value of his half, Joel B., as devisee of his father, was liable for his father's debts. The recording of the affidavits, delivered in escrow, was a ́ fraud on the plaintiff. The sale was ineffectual. There was no written agreement to sell, and the affidavits alone must be the writing by which the title was transferred. These were never delivered. Hence there was no sale and the lien of the mortgage remains. 47 Barb.,

212.

The lien of the mortgage remaining, the six years statute has no application. Plaintiff does not sue

to recover unpaid purchase money of the sale. The mortgage was given in 1858 and this action was begun in 1874.

If the action, however, be regarded as brought on the ground of fraud, Old Code, § 91, it is not barred, for plaintiff did not discover the fraud until 1872. Or if brought under Old Code, § 97, the statute is still further from being a defence. Or suppose, as defendant says, he notified plaintiff in 1868 of the recording of the affidavits and that he made no objection, and assume that this failure to object may be considered as a consent to the delivery, even then six years had not quite expired when this action was commenced. If the plaintiff did ratify the delivery, defendant is still liable to pay the balance due. Whether plaintiff did ratify this act is not decided.

Judgment reversed and new trial. granted, costs to abide event.

Opinion by Learned, P. J. ; Westbrook, J., concurs; Bockes, J., not acting.