
    Theodore Jospe and Others, Respondents, v. Charles H. Danis, Appellant.
    Second Department,
    May 26, 1910.
    Real property—deed —successive conveyances from same grantor — failure of first purchaser to record conveyance — rights of purchaser from second grantee.
    A building annexed to land forms part of the. realty and must be conveyed as . such..
    A conveyance' of a building and its contents by an instrument in writing purporting to be a bill of sale, but not recorded, is-void as against a subsequent grantee of the land upon Which the building stood, who purchased from the same grantor without notice of ,the prior conveyance, if the building had not been removed and the first purchaser was not in such actual, open and visible occupation as to be equivalent to notice.
    Such prior unrecorded conveyance is also void as against a purchaser from the second grantee, although he had notice of the first conveyance. This, because the validity of his title is measured by that of his grantor. ' ' . v
    Motion for a new trial on the, ground of surprise and newly'-discovered evidence , denied..
    Appeal by the defendant, Charles EL. Danis, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 27th day of April, 1909, upon the verdict of a jury; also from an order entered in said clerk’s office on the 26th day of May, 1909, denying the defendant’s motion for a new trial made tipon the minutes, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau nunc pro tunc as of the 29th day of January, 1910, denying the defendant’s motion fora new trial on the ground of newly-discovered evidence and of surprise.
    
      James P. Davenport {JB'rcmldin A. Goles with him on the brief], for the appellant.
    
      Delphin M. Delmas \_Benjamin F. Spellman with him on the brief],-for the respondents.
   Burr, J.:

At the opening of the case, and before any testimony was introduced, defendant moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. At the close of plaintiffs’ case a motion for a nonsuit was made. The denial of these motions constitutes reversible error, for the reason that it affirmatively appears that, as against defendant, plaintiffs were not the owners of the property which constitutes the subject-matter of this action, and for the conversion of which defendant has been held in damages. The complaint" alleges and the proof establishes the following facts: A corporation known as the Trustees of the First Presbyterian Church of den Cove was the owner of a tract of land, with a frame church building thereon, situated at South den Cove in the town of Oyster Bay. ■ On the 23d of October, 1906, the corporation conveyed to plaintiffs the building and the contents thereof by an instrument in writing described as a bill of sale. From this instrument it appears that the building only was sold, and in connection with the sale plaintiffs were given the privilege of removing the building from the property as soon as convenient without damage to the said property beyond the removal of any trees which may be found in the way of such removal. That this building formed part of the realty, and that the conveyance thereof was an interest in land, must be conceded. (Green v. Armstrong, 1 Den. 550; McGregor v. Brown, 10 N. T. 114; Lacustrine Fer. Co. v. L. G. & Fer. Co., 82 id. 476.) . This instrument was never recorded. It does not appear that if properly executed there is such proof of the execution thereof indorsed upon it as would entitle it to be recorded. On September 3, 1907, the church corporation conveyed the land upon which the building stood to one Devine M. Hunger. There is neither allegation nor proof that Hunger had any notice of the conveyance to plaintiffs or of. the extent of their rights thereunder. The,building had not been removed, and there is no evidence that plaintiffs were in such actual, open and visible occupation thereof ' as would be equivalent to notice. (Brown v. Volkening, 64 N. Y. 76.) As against plaintiffs, therefore, Hunger acquired a perfect title, not only to the land, but to the building thereon. In Lacustrine Fer. Co. v. L. G. & Fer. Co. (supra) the court said : “We think it must be a general rule that the owner of land cannot, by agreement between himself and another, make that which in its nature island, personal property, as against a subsequent purchaser for value, without notice, there having been no actual severance of the subject" of the agreement, when the subsequent grant was made.” If for the words “ this defendant ” we substitute the word “ Hunger,” the learned trial justice in his charge to the jury correctly stated the law as follows : “ Of course, a house built upon real property is part of the real property until it is severed by the intentions of the parties. , So that if this defendant [Hunger], not knowing the church had been sold, and there being nothing of record to make him award of the fact, had bought the property as it was from the trustees, he would not only own the real property, but he would take the church, too, and the plaintiffs would be minus their property, although they paid for it.” Subsequently Hunger conveyed the premises to defendant, who became' the record owner thereof. The complaint alleged, and the proof established, that defendant had notice of the. conveyance to plaintiffs and of their claims thereunder before he purchased the property. But notwithstanding that he took under his conveyance from Hunger just as good title to both land and. building as Hunger himself had. “A purchaser, with notice himself from a person who bought without: notice,, may protect himself under the first purchaser. The reason is, to prevent a stagnation of property, and because the first purchaser, being entitied to hold and enjoy, must be equally entitled to sell.” (Bumpus v. Platner, 1 Johns. Ch. 213; Griffith v. Griffith, 9 Paige, 315; Wood v. Chapin, 13 N. Y. 509; Webster v. Van Steenbergh, 46 Barb. 211; Lacustrine Fer. Co. v. L. G. & Fer. Co., supra.) It is true that this point was not specifically called to the attention of the court below, nor was it urged upon this. court, either "in the printed briefs or upon the oral argument. But it is covered by the motions made at the opening of the case and at the close of plaintiffs’ case to dismiss the complaint. It would appear from the evidence that defendant conducted his negotiations for the purchase of the property with some of the trustees of the church, and that he supposed that he was really purchasing from them, although 'his conveyance was from Hunger. ■ Perhaps this was the fact. But upon the complaint and the proof as it now stands, Mungér was an innocent purchaser without notice of plaintiffs’' rights, and defendant succeeded to his rights, notwithstanding notice to him. The verdict was a very large one, more than in our opinion the evidence fairly warranted. We think, therefore, that it will be in the interest of justice to reverse this judgment and order a new trial, when the respective rights of the parties may be more fully considered.

Subsequently to the entry of judgment in this action, defendant made a motion for a new trial upon the ground of surprise and newly-discovered evidence, and from the order denying that motion an appeal was also taken. We think that the affidavits used upon that motion, taken in connection with the case made, did not justify the trial court in setting aside the verdict, and the judgment entered thereon, upon the grounds specified. The order denying the motion for a new trial on the ground of surprise and newly-discovered evidence should be affirmed, with costs to the respondents. The judgment and the order denying a motion for a new trial upon the grounds specified in section 999 of the Code of Civil Procedure should be reversed and a new triaVgranted, costs to abide the event.

Jenks, Thomas, Rich and Cabe, JJ., concurred.,

Judgment and order reversed and new trial granted, costs to abide the event. Order- denying motion for a new trial on the ground of surprise and newly-discovered evidence affirmed, with costs to the respondents.  