
    William Magee, Resp’t, v. The City of Brooklyn, App’lt. Peter Delap, Resp’t, v. The City of Brooklyn, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 21, 1894.)
    
    1. Condemnation proceedings—Award.
    Where the owner of a lot, part of which was taken under chap. 559 of 1871, subsequently conveyed said lot by a full covenant deed, purporting to grant “ all the estate, right, title and interest, property, possession, claim and demand” of the grantor, and, before the city made any attempt to take possession of such portion, the plaintiS, through various similar mesne conveyances, became the owner, the award, which represents the portion of the lot taken, was.transferred by the deeds and belongs to the plaintiS.
    3. Same. •
    Where a lot, a portion of which was taken under said act, was, at the time of its passage, covered by a mortgage then duly recorded, but the mortgage was, before any award was made, foreclosed and the whole lot sold, the purchaser, who holds the title at the time the land is appropriated, is entitled to the award.
    Appeal in the first above-entitled action from judgment of the general term of the city court of Brooklyn, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    Appeal in the second above-entitled action from judgment of the general term of the city court of Brooklyn, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    These actions were brought to recover two awards, made and confirmed under chapter 559 of the Laws of 1871, on account of the taking of a portion of two lots on the north side of North Second street, in the city of Brooklyn, in the widening and improvement of that street.
    
      Albert G. McDonald, for app’lt; F. N. O'Brien, for resp’t; Jackson & Burr, for resp’t, Delap.
    
      
      Affirming, 51 St. Rep. 438.
    
    
      
      Affirming, 51 St. Rep. 128.
    
   O’Brien, J.

These cases both arise out of the same statute and involve similar questions. Both were submitted together and they may be conveniently treated as one appeal. The only question involved in either is to whom the awards, which it is conceded that the city is bound to pay, belong and are payable. By chapter 559 of the Laws of 1871, the lands were taken for street purposes, and it is conceded on all sides that the taking was effected by force of the statute itself, which has been upheld against constitutional objections on the ground that a sure and safe method of making compensation was provided. The taking, however, was only constructive as the owners remained in possession, and no attempt was made by the city to actually appropriate it to the purpose intended until about eighteen years after the passage of the act. In the meantime the land was the subject of sale and transfer in various forms, and in many cases the title was changed from one party to another, and now, when the city has finally concluded to take and pay for the land, the question arises with respect to the party to whom the award rightfully belongs. The case has always been considered as sui generis, and the rights of the parties determined according to the peculiar facts and circumstances upon equitable principles. Donnelly v. City of Brooklyn, 121 N. Y. 9; 30 St. Rep. 501; McCormack v. City of Brooklyn, 108 N. Y. 49; 12 St. Rep. 817.

In the first case Magee, the plaintiff, has recovered in the courts below the amount of an award made by the commissioners to one Caroline C. Shwaitz on the 9th of November, 1876, who did not then own the land nor the lot from which it was taken, she having conveyed the same a few months-before, a fact of which the commissioners may have been ignorant. Charles R. Shultz was the owner of the lot when the act was passed, but on the 10th day of January, 1874, he conveyed it by metes and bounds to Mrs. Schwaitz by a full covenant deed, including in the description the whole lot 'and, therefore, the land for which the award was made, precisely as if the act had never been passed. On March 20th, 1876, Caroline C. Schwaitz conveyed in the same way to Sarah F. Mann, and through several mesne conveyances, all in the same tenor, the plaintiff obtained the title on the 2d of July, 1890. The deeds in every case purported to grant “all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part of, in and to the same, and every part and parcel thereof,” and as already stated, contained full covenants. The party to whom the award was made and her grantees conveyed the land taken and were paid for it, so far as appears, precisely as if the title was not affected by the passage of the act. The city now having taken possession, it must respond to the plaintiff upon its covenants or else he is entitled to the award. In equity the award represents that portion of the land taken, and under the circumstances of the case and the broad and comprehensive language of the deed, it can fairly be said that the parties intended to assign the award. Having conveyed the land with full covenants it must be assumed that they intended to transfer the thing which represented it which was the money ¿warded as its value. Gates v. De La Mare, 142 N. Y. 307; 59 St. Rep. 1. While the actual appropriation of the property to the public use was delayed for many years, yet the situation after the passage of the act was such that it is reasonable to assume that the grantors in the several deeds expected that it would be actually taken at some future time and paid for, and hence they conveyed intending to vest the grantees with the claim against the city which was substituted for a title which each of them covenanted to protect and defend. This view is re-inforced now by the circumstances that none of them are making any claim to the award, and none of them, so far as appears, have ever made any such claim.

In the other case the plaintiff Delap recovered the award of $1,000 made at the same time and for the same purpose with respect to other land taken in the same way. The facts upon which the j udgment rests are somewhat different, though, at least, quite as favorable to the plaintiff. At the time of the passage of the act the McCabes owned the lot from which the parcel which that award represents was taken; but before its passage they mortgaged the entire premises on the 6th of February, 1871, including, of course, the identical parcel taken. The mortgage was duly recorded, it having been given to secure to one Samuel Deleplaine the payment of $1,500. Before any' award was made this mortgage was foreclosed and judgment entered directing the sale of all the land for the satisfaction of the debt. In March, 1876, it was sold upon this judgment and conveyed to the plaintiff, who took ■ the title that the mortgagor had when the mortgage was executed. Though the plaintiff had only a lien upon the land when it was constructively taken, yet when it was actually taken he had the title which by operation of law related back to the time when the mortgage was given, and hence the city has taken his land and he is entitled to the money which represents it.

Moreover, even if the mortgage had not been foreclosed and title taken under it, such a conveyance is deemed to operate in equity as an assignment of the award when made for the protection of the mortgagee or his assigns. Gates v. De La Mare, supra.

In both cases the judgment of the courts below was right and should be affirmed, with costs.

All concur.

Judgment affirmed.  