
    Sophie E. Minton, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 22, 1891.)
    
    1. Railroad—Elevated—Trespass by—Who may maintain action fob.
    S. executed instruments in writing purporting to convey the premises in question to W-, hut in fact intended as collateral security for advances made by W. to S. Subsequently, W., at the request of S., for good consideration, gave plaintiff a deed of the premises. Held, that if plaintiff purchased bona fide without notice that W.’s deeds were intended as a security, she obtained a good title, and could bring an action against defendant for trespass.
    2. Same—When possession is not notice—Estoppel.
    S. collected the rents down to the time plaintiff entered into possession, and then ceased to do so, and testified that the conveyance to plaintiff was with his consent and upon an agreement that W. was to turn over the balance to him and that his debt was paid. Held, that these circumstances took the case out of the rule that possession was notice to the person purchasing, and that 8. was estopped from asserting or maintaining any claim to the title or right to redeem.
    Appeal from a judgment of the general term of the superior -court of the city of Hew York, affirming a judgment entered upon, .a decision.
    
      Julien T. Davies and Samuel B. Rogers, for app’lts; G. Willett Van Nest, for resp’t
    
      
       Affirming 29 St. Rep., 527.
    
   Haight, J.

The judgment appealed from enjoins the defendants from the further maintenance of their elevated railway im Pearl street in the city of New York in front of the plaintiff’s-premises abutting upon that street and known as Nos. 95 and 97,, unless the defendants pay to the. plaintiff the sum of $9,500, as the-value of the easements appurtenant to the premises taken by the-maintenance and operation of the road.

The trial court has found as a fact that the plaintiff “ is now and has been since the 27th day of November, 1882, seized of an-estate of inheritance in fee simple absolute in the premises, * * *" and has since the said 27th day of November, 1882, been and. now is possessed of said premises through her agents and servants.” An exception was taken to this finding which presents-the only question we are called upon to determine.

The facts are substantially without dispute. At the time of' the construction of the elevated railroad the premises in question were owned by one John Steward, who had leased the same to-tenants who were in the actual possession thereof. On November 21, 1878, and December 21, 1878, Steward executed and delivered to Charles Gr. Wolff two instruments in writing under seal purporting to convey the premises to Wolff. But the instruments were in fact given, received and intended by both parties thereto as collateral security for advances of money made- and to be made by Wolff to Steward. On November 22, 1882,,, Wolff executed and delivered to Sophie E. Minton, the plaintiff, a. deed of the premises in consideration of the sum of $50,000,, which she paid by assuming a mortgage of $30,000 then outstanding upon the property, and the balance in cask This deed was executed by Wolff at the request of Steward, and they both intended that the deed to the plaintiff should convey to her the fee. There is no pretense but that the plaintiff paid full value for the premises. If, therefore, she purchased bona fide without, notice that Wolff’s deeds were intended as a security for the loans of money, she obtained a good title. Whittick v. Kane, 1 Paige’s Ch., 202; White v. Moore, id., 551 ; Berdell v. Berdell, 33 Hun, 536; Meehan v. Forrester, 52 N. Y., 277.

There is no evidence showing that the plaintiff had actual notice, but it is contended that she had constructive notice, from, the fact that Steward was in possession through his tenants, and that because she failed to make inquiry of them as to the title-under which they held, she should be treated as though she had actual notice.

We are aware of the general rule that possession is notice to the-person proposing to purchase of the rights of the occupant, but, question its application in this case under the facts disclosed.

As we have seen, the trial -court has found that the plaintiff entered into possession on the same day that she received her deed. And the inference to be drawn from the testimony is that possession was given her by the agent or broker of Steward, and with his consent Steward testified that he collected the rents after-1878 ; that he collected in the years 1880, 1881 and 1882 ; that' that was the last He could not tell when he ceased to collect rents, for lie did not remember when the premises were conveyed.. The date of the deed to the plaintiff was, as we have shown,. November 22, 1882. He ceased to collect the rent in that year, and it is quite apparent that he intended to be understood that he collected the rents down to the time that the premises were conveyed, and then stopped. Again he testified: “ The conveyance made by Wolff to Minton was with my consent. I had authorized him for some time to sell the property; he was authorized to sell the property and to pay me the difference after it was sold from the balance in his hands. There were no writings about it. Mr. Wolff acted as my broker. That is the amount of it; 1 employed him. He was my broker in the matter of borrowing the money in connection with the transactions in which I raised the money.. They were transactions of a mercantile character.” Steward further stated that his debt had been paid off; that he did not know of the transaction between Wolff and Minton at the time the property was sold on that particular day, or what consideration passed between them. He could not tell the precise amount, but had a general idea of the amount, and could not tell whether his debt was paid before or after the conveyance to Minton. Wolff testified that the sale to Minton “was made after conversation with Mr. Steward upon the subject and with his authority.” This testimony, with the inference to be drawn therefrom, appears to us to clearly establish the facts as above stated, and consequently to take the case out of the general rule.

We are also of the opinion that Steward is now estopped from asserting or maintaining any claim to the title or right to redeem. As we have seen the sale to the plaintiff was made with his knowledge, consent and authority. It was made by his broker who was employed for that purpose, and authorized to sell. Steward had the benefits of the proceeds of the sale. The thirty thousand dollar mortgage was assumed by the plaintiff and Steward says his-debt to Wolff was paid Wolff says the balance of the purchase price after paying taxes, etc., was applied by him on Steward’s-indebtedness. Steward has ever since acquiesced in the sale and still continues to do so. Can he now, after reaping the benefits, be permitted to complain of the transaction and establish a claim to the property ? We think not. It would be in violation of well established rules, and contrary to the principles of equity. Wilson v. Parshall, 27 St. Rep., 178; Gennerich v. Ulrich, 35 id., 144; Noxon v. Glen, 2 id., 661; McNeil v. The Tenth National Bank, 46 N. Y., 325; The Merchants' Bank of Canada v. Livingston, 74 id., 223.

The other questions involved have been recently disposed of Pappenheim v. Metropolitan R. Co., 40 St. Rep., 445; Lynch v. Same, 129 N. Y., ; 41 St. Rep., 541.

The judgment should be affirmed, with costs.

All concur.  