Werner v. Wheeler (142 A.D. 358, 1911)

Laughlin, J.:

On the 15th day of November, 1906, the defendant conveyed to plaintiff certain premises in the borough of Manhattan, New York, described in the submission, by a deed containing covenants of seizin, of quiet enjoyment, of warranty, of freedom from incumbrances except as stated, and that the grantor “will execute or procure any further necessary assurance of the title to said premises.” Plaintiff thereupon went into possession under the conveyance and on the twenty-third day of the same month contracted to convey the jiremises to one Cohn with a full covenant warranty deed subject only to a mortgage for $8,500. Cohn refused to take title on the ground that defendant was not seized of the title in fee simple at the time she conveyed to plaintiff, and that the record title was then in one William Mackenzie. On the 2d day of December, 1873, William Mackenzie, who had formerly resided in the city and county of New York, "but who then resided in the city of Manchester, England, executed a power of attorney to one William Matthews, who resided in Flatbush, Kings county, N. Y., by which, among other things, he expressly authorized his attorney to collect, sue for, recover and receive any moneys then due or that might thereafter grow due to him for principal and interest on bonds and on mortgages or other security, and on payment to execute satisfaction pieces or assignments, and with the usual power to do any and all things necessary in the premises. It appears that Mackenzie, in 1895, held a mortgage on the premises in question, and, by Louis Hurst, his attorney of record, brought an action in the Supreme Court in the county of New York to foreclose the mortgage. On the sale the premises were struck off to his attorney of record for the sum of $12,000. The attorney assigned the bid to Matthews as attorney in fact for Mackenzie, and the referee?s deed was executed in form to Matthews as attorney in fact for said Mackenzie on the 19th day of March, 1896. It is stipulated in the submission that this deed conveyed the fee of the premises. The controversy arises, in part, over the question as to whether the conveyance vested the title in Matthews, individually, or iii Mackenzie. On the same day Matthews, as attorney m fact for said Mackenzie, executed and acknowledged a conveyance-of the premises to. one Martha Kemp, who took possession thereunder. The title which she thus received was conveyed by her executor to the defendant on the 29th day of October, 1900, and the defendant took possession thereunder and retained the same until she delivered possession to the plaintiff as already stated. The certificate of acknowledgment to the conveyance by Matthews as attorney in fact sets forth that the conveyance was executed by virtue of said power of attorney, which was duly recorded in the office of the register of deeds in the county of New York on the. 30th day of- December, 1873, to which record reference was- made. Cohn refused 'to take title from the plaintiff on the ground that the record title remained in Mackenzie. This objection was evidently made on the theory that the power of attorney was not sufficiently broad to authorize the execution of a conveyance of real estate, and it is not seriously contended that it was. The plaintiff drew the attention of the defendant to these objections to her title and demanded- a proper conveyance by which any outstanding claims or interest in Mackenzie or in his heirs or devisees might be conveyed. Meantime, and on the 5th day of October, 1897, Mackenzie died in England, leaving a last will and testament in and by .which he devised all of his property to his heirs at law, and his will was. duly probated in the principal probate registery of Her Majesty’s High Court of Justice in England. One of the heirs, William Mackenzie, the younger, also died on or about the 17th day of December, 1898, leaving a widow, Jessie Mackenzie, and several children his heirs' at law.- On said demand being made the defendant procured and delivered to the plaintiff an unrecorded quitclaim deed to the premises bearing date the 30th of January, 1899, duly executed and acknowledged as required for record here by all of the heirs of William Mackenzie, the elder, except the one who had died, and by their wives, and by the widow of the deceased William Mackenzie, the younger. This deed recites the foreclosure of the mortgage and the assignment of the bid to the attorney in fact and the conveyance by him as such, and that he duly accounted to his- principal- for a cash payment received on the sale and conveyance of the premises, and for a mortgage given as security for the balance, and that Mackenzie ratified all of the proceedings of his attorney in fact; that bn the 5th day of October, 1897, Mackenzie died a. widower, leaving as his only heirs at law those who joined in the quitclaim deed and his son William, who was a citizen of the United States, and leaving a last will and testament, which was duly probated as already'stated, by which lie devised and bequeathed all of his real estate to his heirs at law ; that his son William Mackenzie thereafter in 1898 died, leaving a last will and testament by which lie devised and bequeathed all of his estate to his wife, who joined in the quitclaim deed.

The will of William Mackenzie, the younger, was not produced nor were its whereabouts or contents known to either party to this submission, other than as recited in the quitclaim deed, at the time the quitclaim deed was delivered, and when the plaintiff contracted to convey the premises to Cohn said will had not been probated or offered for probate.

The plaintiff employed counsel to find and obtain a certified copy of the will of Mackenzie, the elder, and to find the will of Mackenzie, the younger. The efforts were successful, for it was found and duly probated by the Surrogate’s Court of Kings county as a will of both real and personal property, and its effect is as recited in the quitclaim deed. In these matters disbursements aggregating $150 were incurred, and it is conceded that the reasonable value of the services performed by counsel for the plaintiff was the sum of $800. The plaintiff demands judgment for $950, the aggregate of these two items, and the defendant demands judgment against the plaintiff on the merits.

The record presents two principal questions which require decision, viz.: (1) Whether the referee’s deed on foreclosure vested good title in Matthews individually ;' and (2) whether, if a deed from Mackenzie or his heirs or devisees was required to perfect the title, plaintiff is entitled to recover the costs and expenses incurred by her iii obtaining evidence as to the execution, validity and recording of the Mackenzie wills.

First. The recitals in the quitclaim deed to the effect that Matthews as attorney in fact duly accounted to his principal; that part of the consideration on the conveyance of the premises by him as attorney in fact was received in cash, and that a bond and mortgage were taken for the balance and accepted by the principal, are not stipulated as facts for the purposes of the submission, and the submission contains no statement on these subjects. It does not appear from the submission whether Matthews as attorney in fact, acting under the power of attorney, employed the attorney to foreclose the mortgage, or whether Matthews had charge of that particular mortgage by virtue óf his power of attorney, or otherwise, or whether on the assignment of the bid to him as attorney in fact the indebtedness secured by the mortgage ivas paid, or whether the deed was taken as a substitute for the security, which would be the effect of the proceedings if the mortgage was not paid. It may well be that if Matthews, through the attorney of record,-bid in this property for the protection of his principal on the foreclosure of the mortgage and afterwards took title, as attorney in fact for his principal, the deed -would be deemed a mere substitute for the security and, therefore,- personalty in his hands, and that he. would be authorized to sell and convéy the premises the same as he was authorized, by assignment or otherwise, to collect the -mortgage and in that view the title would doubtless have vested in him individually. (Lock-man v. Reilly, 95 N. Y. 64; Haberman v. Baker, 128 id. 253.) In Lockman v. Reilly (supra) and Haberman v. Baker (supra) it was held that.land purchased by executors on a foreclosure of a mortgage belonging to the estate is regarded as personal property in their hands, and that whether they take title individually or in their names as executors of the estate, and hold the title in a sense as trustees, for they are accountable to the estate therefor,'they may individually convey good title, on the theory that the land is regarded as a substitute fon the mortgage and that, therefore, the heirs take no title or interest in the premises. If we were permitted to draw inferences from facts stated on a submission, I‘think it would be a reasonable inference that title was taken by the attorney in fact for the reason that the entire amount due on the mortgage could not be obtained on the foreclosure sale and that, therefore, the deed became a substitute for the mortgage; but a -submission is only authorized for the decision of questions of law, and on a submission the court is confined to the facts stated and is not permitted to find other facts by inference. (Marx v. Brogan, 188 N. Y. 431,433), and, therefore, the case cannot be decided on that theory.

It is further contended that the words in .the deed “ as attorney in fact for Wm. Mackenzie” following the name of the attorney in fact, are mere descriptio personae, and that, therefore, the conveyance was to Matthews individually. The conveyance runs to the