
    Judson S. Todd, Appellant, v. George D. Eighmie, Respondent.
    
      Vendor and, purchaser — the recital of a deed in a mortgage is effective against the mortgagee, but not notice under the Becording Act—a deed lacking seals conveys an equitable title and may be recorded, arid is notice.
    
    In an action brought to recover the amount of a payment made on a contract for the purchase of real property, and the expense to which the plaintiff had been put in the examination of the title thereto, which he alleged was not marketable, it appeared that the defendant, who claimed under one Ely Moore, who owned the fee in December, 1827, had no deed from Moore, but he put in evidence á mortgage from Job Furman to Moore, dated December 10, 1827, mortgaging the premises to Moore and containing the following recital: “Being the same premises which were conveyed by said Ely Moore and Emmeline, his wife, by their indenture bearing oven date herewith, as by reference thereto will more fully appear.” The defendant also produced a conveyance from the heirs of Ely Moore to one Motley, recorded in 1865, and also a deed from these heirs to one Callaghan, recorded in April, 1868, also a conveyance from Motley to Callaghan, and conveyances through Callaghan and others to himself.
    The foundation of the opposing title was a deed made in 1848 by Ely Moore under a power of attorney, and recorded with the power of attorney on May 2, 1868, .to one Morton, who- conveyed, "by a deed recorded on the same day, to a person named Hawkes, who gave back a mortgage, which is still outstanding.
    
      Held, that the record title of the defendant was good;
    That if his title rested merely upon the recital of the deed from Móore to Furman', contained in the mortgage from" Furman to Moore, the Recording Act would ■not protect the defendant, as it could not .then be said that the conveyance1 under which the defendant claimed was notice to a subsequent purchaser of the existence of the deed from Moore to Furman;
    That the defendant, was protected, however, by the deeds from the heirs of Ely Moore, both of Which were recorded before the deed to Morton;.
    That the fact that the first Of these deeds had no seals did not make it inoperative either to. convey an equitable interest in the property or to. serve as notice to a purchaser whose deed was recorded subsequently;
    That such a. deed was good between the "parties ’and vested in the grantee an , equitable right to the property, which, entitled him to have the legal title conveyed to him by a proper instrument of conveyance, and might be lawfully" recorded, because it affected the title to real estate;
    That, this being so, Hawkes, when he took his conveyance, had constructive proof by the record that the heirs of Ely Moore had conveyed the property;
    That if there were any defect in the deed from the heirs of Ely Moore "to Motley it Was Cured by their subsequent deed to Callaghan, the grantee of Motley; and the owner of the equitable interest transferred by the heirs of Ely Moore to Motley; .
    That Callaghan, by virtue of the two deeds, had a perfect legal title which,, by the record, was good as against any conveyance from Ely Moore subsequently recorded; ■
    That the title was marketable, and that the complaint was properly dismissed.
    Appeal by the' plaintiff, Judson S. Todd, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county óf Hew York on the 23d day of January, 1896, upon the decision of the court, rendered after á trial at. the blew York Special Term-, dismissing the plaintiff’s complaint,. ■
    
      George W. Van Slyck, for the appellant.
    
      Reuben H. Underhill, for the respondent.
   Rumsey, J. :

On the 2oth of February, 1893, the parties to this action made a contract ,by which the defendant agreed- to sell to the" plaintiff certain premises in the city of’ Hew York for the price of" §29,000, to be paid by the plaintiff, and upon- which, at the time of the execution of -the contract, the plaintiff paid $1,000. .After the-contract was made the plaintiff caused the title to he examined at an expense to him of $500, and thereupon he declined to complete the contract and take a conveyance of the premises, alleging as a reason that the defendant did not have a marketable title to the property. He then brought this action to recover the amount of the deposit and the expense to which he had been put in the examination of the title. The action was tried at Special Term, and a decision was rendered, dismissing the complaint, upon which the judgment appealed from was entered.

It.is conceded by both parties that Ely Moore was the owner in fee of these premises down to December, 1827, and the defendant claimed title under Ely Moore. He produced, however, no deed from Ely Moore directly, but endeavored to establish the fact that a deed had been executed and delivered in the following way : He produced and put in evidence a mortgage from one Job Furman to Ely Moore dated the 10th day of December, 1827, and properly recorded, mortgaging the premises in question to Moore to secure a sum of money and containing the following recital: Being the same premises which Were conveyed by said Ely Moore and Emmeline, his wife, by their indenture, bearing even date herewith, as by reference thereto will more fully appear.” There was no other proof made of the existence of a deed by Ely Moore to Furman. The defendant deduced his title by a series of mesne conveyances from Furman. These conveyances were all properly recorded. In addition to that the defendant produced a conveyance from the heirs of Ely Moore to one Motley, dated the 1st day of December, 1864, and recorded in January, 1865, reciting a consideration of $1,000 paid to the grantors. He also produced and put in evidence a deed from the heirs of Ely Moore to one Callaghan, dated in March, 1868, and recorded on the 22d day of April, 1868, and he produced and put in evidence a conveyance from Motley to Callaghan and conveyances from Callaghan through divers persons to himself. This was the title upon which the defendant relied.

It is quite apparent that, so far as the heirs at law of Ely Moore were concerned, these several conveyances gave to the defendant a perfect title to the premises. Ho element of proof was lacking to complete that title. Although the deed from Ely Moore to Furman was not produced, yet the recital in the Furman mortgage that the property.had been conveyed by' Moore and wife to Furman is sufficient proof of the deed which Moore had made to Furman,, and the heirs of Moore were_ estopped to question the existence of that deed. (Carver v. Jackson ex dem. Astor, 4 Pet. 1, 83; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35.) That recital, as against Moore and all persons privy to him, operated as conclusive proof that the deed mentioned in it had actually been made and delivered. (Torrey v. Bank of Orleans, 9 Paige, 649.) Therefore, except for the Recording Act, the title of the defendant was good as against all persons making an adverse claim to this property through. Ely Moore.. The plaintiff, however,, insists that the outstanding conveyances, which, he claims are a cloud upon the defendant’s title, take precedence by virtue of the .terms of 'the Recording Act,-and for that reason the defendant could.not convey a good title.

. At the foundation of the opposing title is a deed made by Ely Moore, through his attorney, to one Norton,-in 1848, and .recorded on the 2d day of May, 1868. The power of attorney, by virtue of which this deed was made, was recorded at the. same time with the deed-. There are some defects in this-power of attorney which it is not material to notice here, Norton conveyed to Hawkes by a deed which was also recorded on the 2d of May, 1868, and Hawkes mortgaged the property for a. substantial amount, and that mortgage is still outstanding.

The plaintiff claims .that the records of the deeds-from Furcnan by mesne conveyances to the defendant were not operative as against the deed to Norton because, as there was no conveyance, on record from Moore to Furman, these deeds did not.give any notice that Furman derived his title from Moore. The rule undoubtedly is, that the record of the mortgage from Furman to Moore, although it contained a recital of the deed from Moore to Furman, was no- notice, under the Recording Act,, to a subsequent purchaser of the existence of the deed from Moore-to. Furman .which was mentioned in the recital. (Wade on Notice, § 207; Losey v. Simpson, 11 N. J. Eq. 246; Veazie v. Parker, 23 Maine, 170.) If that were all there was of the title of the defendant, it might be that the outstanding title would be the. better one> because of the provisions of the Recording Act*, which are that every conveyance- not recorded shall bo void as against any subsequent purchaser in good faith and for a valuable- consideration of the same estate, whose conveyance shall he first duly recorded. (1 R. S. 756, § 1.) The defendant, however, seeks to supply this defect by a reference to the deeds from the heirs of Ely Moore, each of which was recorded before the deed to Horton. The plaintiff says, however, that these deeds are neither of them effective. He claims that the deed of December, 1864, is inoperative either to convey property or to serve as notice to a purchaser whose deed was subsequently recorded, because it had no seals. In this claim he is mistaken. Although that deed was not effective to convey the legal title, it was, nevertheless, good, as between the parties to it, to vest in the grantee an equitable right to the property, which would entitle -him," as against the grantors, to have the legal title conveyed to him by a proper instrument. (Tarbell v. West, 86 N. Y. 280; Todd v. Union Dime Savings Institution, 118 id. 346; Grandin v. Hernandez, 29 Hun, 399.) It was held in the last-cited case that such a deed might lawfully be recorded, because it affected the title to real estate (1 R. S. 762, § 38), and that, being so recorded, it was notice to all persons dealing with the property that the grantors had conveyed the property. If that be so, clearly, Horton’s grantee, Hawkes, when he took his conveyance, had constructive proof by the record of this deed that the heirs of Ely Moore had conveyed the property away, and, therefore, he could not have been a purchaser in good faith. But if that were not so, still, this deed, in conjunction with the deed from the same parties executed in March, 1868, was clearly sufficient to vest the legal title in the defendant. While the deed of December 1, 1864, was not operative to pass the legal title, yet it was, as we have seen, effective, as between the parties, to convey to the grantee named in it all the equitable rights which were necessary to entitle him to compel a conveyance of the naked legal title from the grantors. As such a conveyance, it not only vested the grantee with the equitable interest in the property, but the recital of a consideration in it was prima facie proof of the payment by the grantee therein named to the heirs of Ely Moore of a valuable consideration for the premises. (Wood v. Chapin, 13 N. Y. 509; Jackson ex dem. Rounds v. M'Chesney, 7 Cow. 360; Lac. Fer. Co. v. L. G. & Fer. Co., 82 N. Y. 476.) When, therefore, the heirs of Ely Moore made the subsequent conveyance in March, 1868, by which their title vested in Callaghan, who at the same time became the owner .of the- equitable interest transferred by their deed of December, 18.64, they simply did wliat the.law would have- compelled them to do-; that is, to transfer to the person holding the equitable right which they had conveyed, a legal title which was necessary to perfect their conveyance. When that was done, Callaghan became the owner of the perfect legal title by two deeds, one of which passed the title, and the other, by its recitals, proved that, he was a purchaser in good faith, and those deeds, being, thus -.recorded, make a perfect title as against any conveyance from Ely Moore, subsequently recorded. The, residí of all these deeds together was that the defendant showed a title from the heirs of Ely Moore to a purchaser in good faith, fully protected by the Recording Act, on the 22d day of April, 1868. This title was conveyed -to the defendant,, and lie then, was the -owner of. these premises, not. only by- virtue of the Furman title,, which was effective as against -everybody except a siibsequent purchaser whose deed Was- first recorded, but by virtue of the title from the heirs of Moore, which was recorded before the deeds under which Hawkes claims. There was; therefore, no defect in the defendant’s title in any aspect in which it can •be viewed.

- AH the facts upon which this title depended appear by the record, and are necessarily established when the record is put in evidence. For that reason the title was not only a good one, but it was marketable (Fleming v. Burnham, 100 N. Y. 1), and the judgment dismissing the complaint was proper, and should be affirmed, with costs,

Yan Brunt, P. J., Barrett, O’Brien and Ingraham,. JJ., concurred;

Judgment affirmed, with Costs.  