
    Sally Ann Russell, Appellant, v. William A. Wales, Respondent.
    Fourth Department,
    May 1, 1907.
    Vendor and purchaser — specific performance — judgment against prior owner subsequent to conveyance no cloud on title — when no presump- . tion that grantor had wife. ‘
    
    The. vendor of lands who has contracted to ,give. á good and satisfactory title, to . be shown by a search, may enforce specific performance, although it appears that a judgment, was entered against a prior owner subsequent to his -deed of conveyance, especially when the judgment has been discharged in bankruptcy. An unrecorded deed takes precedence over a subsequent judgment.
    The fact' that a prior grantor had a wife in 1899 raises no presumption that he had a- wife two. years before, at which time he conveyed, and a subsequent •vendee is not.entitled to refuse title on the ground that..the wife did not join in the deed,, and especially so.when the vendor offers her quitclaim, deed subsequently obtained. ■
    Williams, J., dissented;
    Appeal by the plaintiff, Sally Ann Bussell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the.clerk of the county of Steuben on the 4th- day of December, 1906, upon the'decision of the court, rendered after a trial at the -Steuben. Special Term, dismissing the plaintiff’s complaint. ■
    The action was commenced on the 18th. day of August, 1906, to compel specific performance of a written contract for the sale of land. The eompjaint set out the contract, alleged performance or offer to. perform by the plaintiff, and refusal by the defendant to perform. The answer alleged in substance that the plaintiff had not complied with the terms of the contract because the title to the premises as shown by the search delivered to the defendant was not such as is required by the con tract.
    
      J. W. Bussell, for the appellant;
    
      Warren W. Oxx, for the respondent.
   McLennan, P. J.:

, The contract entered into by the parties is dated the 20th. day of J une, 1906, was executed that day and is made a part of the complaint. It provides in substance that the plaintiff agrees to sell to the defendant the premises therein described,-consisting of a farm in the town of Howard, county of Steuben, for the sum of $3,500. The defendant agreed to purchase the same and to pay the purchase price as follows : To pay all mortgages and other liens on said farm • with accrued interest thereon, not exceeding $3,500, and in case said mortgages and liens with accrued interest did not amount to the sum. of $3,500, to pay the balance thereof to the plaintiff. The ■ plaintiff agreed that upon such payment being- made by the defendant she would execute and deliver to him a good and sufficient war- . ranly deed conveying said premises free and clear from all rights of dower or inchoate rights of dower. It was further provided in said contract ¿s follows:

“ The several sums of money constituting the purchase price shall be paid upon the delivery to the second party of an abstract of title of said premises, delivered within twenty days hereafter, showing a.' good and satisfactory title in. the first party, and that the liens thereon do not exceed the sum of $3,500, and shall they exceed said sum this contract shall be void and of no effect.

Said party of the first part also agrees to furnish to party of the ■ second part at the time of the delivery of said deed, a full and complete search and abstract of the -title of said premises down to delivery of said deed, covering at least back to the title of Joel Bussell, deceased, years prior thereto, duly .certified by the clerk of Steuben County, H. T.

" Said party of the second part also agrees to pay all taxes and assessments that shall be taxed or assessed on said premises from the date hereof Until the said sum shall be fully'paid as aforesaid. And all taxes for the year 1906.” .

' It was also'mutually agreed that the defendant should have possession of the premises immediately upon the execution of the contract, he agreeing to keep the same in repair, the plaintiff reserving the right to declare the contract void and regain possession in case of defendant’s failure to perform the conditions in the contract to be performed by him. " • ' ' .

On the 9th day .of July, 1906, and within the twenty days' after the execution of such contract, specified as the time within which a search.must be delivered to the defendant “ showing a good and satisfactory title in the first party and that the liens thereon db not exceed the sum of $3,500,” a search was delivered-by the plaintiff to the defendant, which,, it is. claimed, satisfied the requirement of the contract in that regard. The defendant received such search, but stated in' substance that he would have it examined by counsel and determine whether or not it complied with the provi-, sionsof the contract. The defendant did not-in any manner inform the plaintiff as to his conclusion in that regard, and in no maimer suggested that the search delivered to him was not in all respects satisfactory. Thereafter, and on the 19th and _20th days of July, • 1906, a warranty deed was executed by the plaintiff and cóncededly by all oilier parties having any interest in or title tb the premises, conveying the same to the defendant subject to two mortgages amounting in the aggregate to $2,300 with accrued interest, arid on the twenty-fifth day of July the plaintiff notified the defendant that she was ready to give a conveyance of such premises. The defendant said in answer to such suggestion that he supposed the deal had fallen through because so much time had elapsed. The defendant then mentioned certain alleged defects in the search which had been . delivered to him, .and said, in substance, that owing to such defects lie would not accept the title and positively and unequivocally refused ' to proceed further in the transaction. Tie mentioned the Brand-age judgment, which will he hereinafter referred to, and said that owing to it he would' not accept the title. Thereafter, and within ¡ a few'days .after such transaction, the plaintiff tendered to the defendant a warranty'deed of the premises in question, which concededly, if accepted, would have conveyed to him a perfect title to the premises in question, free from all incumbrances, except the mortgages,, which he had ¿greed to assume'as a part of the purchase price. He refused to accept such deed or to pay the purchase price specified-in the contract, and thereupon, this action was-brought.

It will be seen that the grounds upon which the defendant refused to complete his contract for the purchase of the .premises in question are purely technical, because he was tendered a deed which, if accepted, would have vested in him the absolute title to such premises free and clear of all liens and incumbrances except those which he assumed to pay ás a part of the purchase price; and the only excuse which he offers for non-performance of the contract entered into by him is that the search required .to be delivered within the twenty days after the execution.of the contract, which may almost be considered as a preliminary step in the proceedings, was not strictly as required by such contract. We think that, strictly speaking,, such search-did fully comply with the terms of such contract. The criticism of it is that it showed a judgment in favor of one Brundage against Joel W. Bussell for $2,218.88, recovered and docketed September 15, 1897, winch eoncededly, if added to the. other incumbrances and liens, would amount to more than. $3,500. But it appeared that prior to the recovery of such judgment said Joel W. Bussell, under date of' September 13, 1897, had conveyed all his interest in said premises to the plaintiff in this action. Such deed was not recorded until May 22, 1899.

It is elementary that an unrecorded deed takes precedence over a subsequently docketed judgment ;• so that upon the face of the search there was nothing, to indicate that such judgment was a lien upon the premises in question.

. But in addition it appeared that when the deed was tendered such judgment against Joel W. Bussell had been canceled and discharged by a decree in bankruptcy entered in his favor. We think it unreasonable to hold that a-judgment docketed .against Joel W. Bussell on the-loth day of September, 1897,. constituted a lien upon the premises in question, when he had conveyed the same-to the plaintiff two days previous to the entry of such judgment, and where no attack had been made upon such transfer during that time, and especially where it appeared that when the deed in question • was tendered such judgment had been discharged of record and as a claim against said Joel W. Bussell.

It is also insisted that the séarch delivered- to the. defendant was defective because it-did not show that the' wife of Joel W. Bussell joined in the quitclaim deed executed by him to the plaintiff in' 1897. Só far as appears by the search at that time Joel W. Bussell had no wife. It appears that'he did have a wife in 1899 when he assumed to execute the mortgages shown upon such search; but we know of no prineiple upon which. it can be assumed by reason of the' fact that-such mortgage's were executed in the manner indicated, that Joel W. Bussell had a wife who. had a dower • interest in-his real property at the time the deed was executed and delivered to his mother .in ■ 1897. But the defendant is not compelled to depend upon the maintenance of that proposition, which may be somewhat technical, because the wife of- Joel W. Bussell had no dower interest in- the lands in question. The interest of her husband was hut a vested remainder, expectant upon the estate for life of his mother. (Durando v. Durando, 23 N. Y. 331; House v. Jackson, 50 id. 161; Jackson v. Walters, 86 App. Div. 470.)

It is undoubtedly true that if a purchaser who intended to'take title to property knew that such dower interest of the wife' existed and that she had"not or would.not release the same, that would he a sufficient reason for■ refusing, to complete'such purchase; hut in this case concededly'by the deed which .was tendered to the defendant, all such dower rights of the wife of Joel W. Bussell, if any existed, were "transferred and conveyed to the defendant. Therefore, technically, we conclude that the search presented to the. defendant, within the twenty days specified in the contract," showed an absolute aud perfect title in the plaintiff and that there were not mortgages or liens against the property in excess of $3,500, and that the additional judgment of' $2,218-88 against Joel W. Bussell, who at one time owned the remainder of the premises in question, Ad not" constitute a lien against such premises; and that the fact that the wife of Joel W. Bussell joined in making a mortgage upon such premises in 1899 did .not indicate that he had a wife who was entitled, to dower in the -same in 1897, when he assumed to convey to the plaintiff his interest in the premises.

We the more readily reach this conclusion because, as we have seen,' when the deed of the premises was tendered to the defendant it is undisputed that the judgment against Jóel W. Bussell had been discharged and satisfied and that the wife of Joel W. Bussell joined in the deed which was thus tendered to the defendant.

It is apparent that the defendant sought to be relieved from the terms of the contract which he had entered into solely because of technicalities. That he was tendered á deed which conveyed to him an absolute and perfect title to the farm is not questioned. He seeks -to evade performance of the obligation assumed under such.contract on his part because of certain alleged defects in the search originally delivered to him, and his reason for non-performance of the contract is based solely upon such alleged defects.

We conclude that the search presented within' the twenty-days specified in the contract was in substantial coiripliance' therewith, and that the defendant,, not having objected to the same until the deed 'of the premises was tendered which gave him all that he had purchased, ought riot to be heard to say that the original search was not in terms as required by the contract, even if such were the fact. To state the contract in plain English, the defendant agreed to pay'$3,50.0 for the premises in question in case he was given, good title- to the same.. Such good title was tendered to him, but he refused to pay and complete his purchase because, as alleged, a preliminary search required to be delivered to him under the contract did not show that plaintiff could convey such, good title. We’ think such preliminary search conformed to the requirements of the contract; that the plaintiff performed all other conditions imposed thereby upon her, and that the defendant without reasonable cause or excuse seeks, to avoid his obligations thereunder. J

It follows that the judgment appealed from should be reversed and a'new trial granted, with costs to the appellant to abide event.

All concurred, except Williams, J., who dissented. ; ,

Judgment reversed and new trial ordered, with ■ costs to the appellant to abide the event.  