
    Emily F. Dingley, Resp’t, v. Isidore M. Bon, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed February 9, 1892.)
    
    Vendor and purchaser—Marketable title.
    A deed to one of plaintiff’s predecessors in title, after stating that the grantors had sold ‘ ‘ certain portions ” of the premises to others, and taken mortgages therefor, conveyed all their right in the premises and to the mortgages. The portions sold to others were not particularly described. The deeds to the others did not seem to have been recorded. Held, that this did not constitute a marketable title, as it depended upon a disputed question of fact outside of ibe record about which there is reasonable doubt, and the parties interested in such determination were not before the court. ...
    Appeal from a judgment of the general term, second department, affirming a judgment entered upon a decision.
    
      Herman F. Koepke, for app’lt; Jesse Johnson, for resp’t.
    
      
       Affirming 30 St. Rep., 162.
    
   Haight, J.

This action was brought to compel the specific performance of a contract to purchase land. The defense was that the title was not merchantable.

Peter A. Delmonico was the owner of a tract of land in the city of Brooklyn comprising the land in question. On the 11th day of March, 1854, he conveyed the same to Henry Jukes and Job Gothard. On the 26th of September thereafter they conveyed the same to James Hordern by separate deeds, each of an undivided half, which were identical in form, containing the same recitals. The quotations hereinafter made are taken from the Jukes deed. It contained the following:

“Whereas, the said Henry Jukes and Job Gothard afterwards by deeds sold and conveyed' certain portions of the entirety of the premises hereinafter described to John Langston, Jubal Shaw and .Samuel Bailey by separate deeds of conveyances, and took back from the said John Langston, Jubal Shaw and Samuel Bailey, severally, bonds and mortgages for the respective payments of the several sums therein mentioned as securities and for the purchase moneys thereof, reference to the several deeds being hereunto had will more fully appear; and
“ Whereas, the party of the second part has agreed to purchase of the said Henry Jukes his portion of the entirety of the premises hereinafter mentioned, subject, however, to the several equities aforesaid.”

Then follow the ordinary provisions of a deed with a description of the premises, after which appears the following:

“ Nevertheless, it is hereby understood by and between the parties hereto that the said Henry Jukes, as far as in him is, not only ■conveys his right, title and interest in and to the premises aforesaid, but hereby sells, assigns and confirms unto the said James Hordern, all and singular the said bonds and mortgages as far as the moiety of his interest in the premises aforesaid attaches made by the said John Langston, Jubal Shaw, Samuel Bailey to him, the said Henry Jukes, and the said Job Gothard, for security on their said several purchases of portions of the property aforesaid, and all his right and interest therein and thereto, so that the said James Hordern shall stand in every respect and particular regarding the. aforesaid property in the place and stead, and with the rights and title therein of the said Henry Jukes.”

Hordern subsequently conveyed the premises to William Tasker, who conveyed to Sidney Harris, who died leaving a last will and testament, which was duly admitted to probate, whereby he appointed Edward A. Harris executor, with full power of sale. Harris, as executor, sold to John B. Kennaday, but he refused to complete the purchase by reason of the recitals in the Hordern deed, to which we have already called attention. Thereupon and on the 12th day of June, 1869, an action was brought to compel him to accept title- An answer was. interposed and a reference was had to Oscar H. Stearns to take proof of the facts and circumstances at issue in the case and to report the same with proofs and testimony taken before him to the court. He thereupon made his report, and afterwards and on the 16th day of June, 1869, judgment was entered, in which it was adjudged and decreed that the objections of the defendant to the title to the lands be overruled, it appearing that the recitals in the deeds set forth in the answer are mis-recitals and are not true; that no deeds were ever given to John Langston, Jubal Shaw and Samuel Bailey by Job Gothard and Henry Jukes, or either of them; that executory contracts made with said persons were cancelled and surrendered to •James Hordern, the grantee of said Jukes and Gothard. It was further ordered and adjudged that John B. Kennaday specifically perform his contracts. Thereupon Kennaday took title and conveyed the same to the plaintiff.

It first becomes important to consider the effect of the judgment entered in the action of Harris v. Kennaday. As we have seen, only four days elapsed between the service of the summons and the entry of final judgment. The only evidence reported by the referee was the affidavits of Henry Jukes, Job Gfothard and James Hordern. It does not appear that any oral examination was had. Jukes, in his affidavit, says that he had some recollection of making a contract with John Langston, Jubal Shaw and ■ Samuel Bailey in relation to the sale of lots; that he supposes he received some money on the contracts, but does not know how much ; that he believes, or at least has no recollection, that any deeds were executed, or if ever executed, were not passed by deponent to Langston, Shaw or Bailey. Gfothard says that he remembered making contracts with John Langston, Jubal Shaw and Samuel Bailey for the sale of land bought by him of' Delmonico; that he received, he thinks, a small amount of money from each of the parties on the contract; that he thinks no deeds were executed by him under his contracts and he received no mortgages. If he had he would have put them on record ; that he sold his interest in the property subject to the contracts to James Hordern. Hordern swore that he bought the property subject to certain contracts made with John Langston, Jubal Shaw and Samuel Bailey for deeds to be executed and mortgages to be received, but that they failed to comply with the contracts and no deeds or mortgages were ever made or executed, and all of the contracts were surrendered to him to be cancelled and were delivered over to Tasker, his grantee; that Langston built a house on the premises, which he allowed him to take off and remove as a consideration for his surrender and cancelment of his agreement ; that he is sure no deeds or mortgages were ever on the-lots or any part of the same in pursuance of the contracts. This was all of the evidence given upon which that judgment was; entered.

It will be observed that Jukes and Gfothard have no distinct recollection in reference to the execution of deeds to Langston, Shaw and Bailey. They think they executed none, or if they did that they were not delivered, and they think that no mortgages were received back. It is not pretended that Hordern was-in a position to have personal knowledge as to whether they did or did not execute and deliver such deeds. Langston, Shaw and Bailey were not parties to that action. They consequently were-not bound by the adjudication there made. Neither is the same-binding upon the defendant in this action. We must, therefore,, regard the question here presented the same as if the adjudication in the Harris action had not been made.

The lands in question are vacant, having never been occupied. The plaintiff’s title is such only as Hordern obtained through his. deeds from Jukes and Gfothard. Those deeds do not purport to-convey the absolute fee to Hordern but specifically reserve that, conveyed to Langston, Shaw and Bailey, and provide that Hordern “ shall stand in every respect and particular regarding the aforesaid property in the place and stead, and with the rights and. title therein” of Jukes and Gfothard.

It is claimed that an examination of the register’s office in th& county of Kings fails to disclose any record of the deeds to Langston, Shaw and Bailey, that the recitals in the deeds only amount to constructive notice and cast upon the purchaser the duty of ascertaining from the records the extent and nature of their conveyances, and that inasmuch as the record disclosed nothing the purchaser took absolute title in fee.

The question thus presented is not free from difficulty, but we incline to the opinion that the rule thus invoked does not and should not extend to the case under consideration. As we have seen the Hordern deed specifically reserves therefrom the lands conveyed to Langston, Shaw and Bailey, “ reference to their several deeds being hereunto had will more fully appear.” Hordern would not, therefore, under the deed take any title to that which had previously been conveyed to these parties. True, those deeds do not appear to have been recorded. They however may be in existence, and may hereafter be produced for record, and if they should, we do not understand that there is anything in the provisions of the Recording Act that would prevent the grantees therein named from claiming the lands described in their deeds. Conveyances not recorded are void as against subsequent purchasers in good faith and for a valuable consideration for the same real estate or a portion thereof, but if the purchaser has notice of such unrecorded deed he cannot claim the benefits of the act. Here the recitals in the Hordern deeds give notice of the existence of such unrecorded deeds.

In the case of Sanders v. Townshend, 89 N. Y., 623, the action was ejectment and not for specific performance of a contract to purchase. Townshend held a deed which conveyed certain lots, specifically describing them. It also conveyed all other lands contained within the limits of the Harlem commons as described on the map of Charles Clinton “not heretofore conveyed by the parties of the first part.” The party of the first part therein referred to formerly owned the entire tract known as the Harlem commons and had conveyed therefrom various lots of land. An examination of the records failed to disclose any previous conveyance of the lots in controversy. It was therefore held that Townshend had a paper title good on its face against the grantor and good as against the world except some person who could show an earlier conveyance from Townshend’s grantor. This case does not sustain the appellant’s position, for it distinctly recognizes the rights of those holding prior grants.

The case of Dow v. Whitney, 147 Mass., 1, also relied upon by the appellant, does not appear to be in point. In that case the deed contained a specific description of the granted premises and then concluded by stating that they were the same premises that were conveyed to the grantor by a certain deed which conveyed a larger tract, and then recited that the conveyance was of ail the land conveyed by that deed except such portions thereof as the grantor had theretofore sold. It was held that the recital did not operate to alter the description or limit the prior granting clause of the deed, but was a reference merely to the grantor’s chain of title.

The defendant is entitled to a marketable title free from reasonable doubt. The records of the register’s office do not show such a title. Its validity depends upon the determination of the fact' as-to whether deeds were in fact given to Langston, Shaw and Bailey,, and the rule is that specific performance will not be decreed when the title depends upon a disputed question of fact outside of the record about which there is reasonable doubt, when the parties interested in such determination are not before the court. F leming v. Burnham, 100 N. Y., 1; Kilpatrick v. Barron, 36 St. Rep., 15-20.

The judgment should be affirmed, with costs.

All concur.  