
    Nellie C. Riley, Appellant, v. Carrie Robinson, Defendant, Impleaded with Augustus R. Hoefer, Respondent.
    Second Department,
    October 22, 1908.
    Real property — failure to record deed—when title of second grantee . superior—when notice to grantor not chargeable to grantee—purchaser for “valuable consideration.”
    Where a grantee has failed to record her deed and the property is subsequently offered for sale by one claiming title under a tax deed and the vendee refuses title unless furnished with a quitclaim deed from the holder of the last recorded title, which is obtained by the seller, notice to him by the person executing the same that she had previously conveyed the property is not notice to the second purchaser, and where the consideration is adequate his title is superior by virtue ef the Recording Acts.
    Where the second purchaser paid full value for the land under the tax deed, he is a purchaser for a valuable consideration within the meaning of the Recording Acts, although he paid but ten dollars for the quitclaim deed. And this is so even if he be considered as purchasing under the latter deed.
    Woodward, J., dissented, with opinion.
    Appeal by the plaintiff, Nellie C. Riley, from a judgment of the Supreme Court in favor of the defendant Augustus R. Hoefer, entered in the office of the clerk of the county of Suffolk on the 14th day of August, 1907, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.
    
      Henry P. Burr [Edward F. Riley with him on the brief], for the appellant.
    
      Albert G. Aubery [Noah Tebbetts with him on the brief], for the respondent.
   Gaynor, J.:

This is a suit to determine title to unoccupied real property in Suffolk county between two conflicting claimants. It was conveyed to the plaintiff in 1895 by the owner of the legal title, the defendant Carrie Robinson, but the plaintiff failed to record her deed and lost it. In 1905 one Frazer offered to sell the land to the defendant Hoefer for $450, and Hoefer purchased it of him and paid him that sum therefor. The deed of conveyance offered by Frazer was. by one Van Tassel, but Hoefer had no dealing with him. Van Tassel’s title originated in a sale in fee of the property by the county treasurer of Suffolk county for unpaid taxes, and reached him through a chain of conveyances beginning with the grantee in the tax deed. The attorney who searched the title for the defendant Hoefer informed Frazer that Hoefer would not complete the purchase unless a quit-claim deed was obtained of the person in whom the regular title was, and informed him that the record showed it to be in Carrie Robinson. Thereupon Frazer obtained of her a quit-claim deed of the property to Hoefer, and delivered it to him with the said deed from Van Tassel. She testified that before delivering such deed to Frazer she told him that she did not own the property — that she had conveyed it to the plaintiff.

The learned trial judge was entirely right in refusing to find that notice to Frazer of the conveyance of the defendant Carrie Robinson to the plaintiff was not notice to' the defendant Hoefer. Frazer was not his agent; on the contrary, their only relation was that of vendor and purchaser. Frazer undertook to give good title to Hoefer, and did it in his own way. He was not acting for Hoefer but for himself. There is no evidence whatever on which to base the relation of principal and agent between them.

The defendant was a purchaser without notice of the unrecorded conveyance, and also for a valuable consideration, which the statute makes necessary to give a recorded deed priority over a prior unrecorded deed. Taking the phrase valuable consideration ” to mean an approximately adequate consideration, all things being considered, including the purchaser’s good faith, the defendant’s case is within it. for there is no dispute that he paid full value for the land. It is only saia mat he did not pay such a consideration, 'within the meaning of the statute, for the quit-claim deed. But that deed cannot be treated separately. The defendant’s vendor was obliged to give him a good title, and the number of deeds he delivered to that end does not matter ; it remains that the defendant paid full value for the land. But if the question of an adequate consideration, for the quit-claim deed separately had to be considered, it could not be said, with the tax title outstanding, that the $10 paid for it was not adequate. If the tax title was good — which it apparently was — the quit-claim deed.was worth nothing, and if it was doubtful — and that is' the worst that can be said of it — the value of the quit-claim was speculative. The test of whether the defendant paid a. fair or adequate consideration is not the amount paid'by his vendor for the .quit-claim deed, but the amount the defendant paid for the land. This is all on the theory of treating the defendant as a purchaser from the grantor in the quit-claim deed. But he had no dealings with her. His vendor obtained the quit-claim deed for the purpose of conveying title to the defendant, but caused the name of the defendant instead of his own to be put in it as grantee.

The defendant therefore got priority by the said quit-claim deed over the prior unrecorded and lost deed — if it ever existed.

The judgment should be affirmed.

Jenks, Hooker and Miller, JJ., concurred; Woodward, J., read for reversal.

Woodward, J. (dissenting):

In 1895 the defendant Robinson, being then the owner of the premises in question, conveyed them to the plaintiff, but the deed was not recorded and was subsequently, lost. In 1900 said premises were conveyed by the county treasurer of Suffolk county pursuant to a tax sale to one Randall, and whatever title said Randall thus acquired passed by mesne conveyances to one Abram Van Tassel.

The defendant Hoefer through . one Frazer as an intermediary bargained for Van Tassel’s title and‘referred the matter to his-lawyer, ■ who, after making an examination, requested Frazer to procure a deed - from said Robinson to said defendant Hoefer, and refused to approve the title unless that were done. Upon being applied to for a deed Robinson informed Frazer that she had conveyed the property to. the plaintiff, hut upon his assurance that a quitclaim deed did not amount to anything and was only wanted to straighten out the title; she executed a deed to said. Hoefer which Frazer delivered. Thereafter the title was approved by the lawyer, a deed from Yan Tassel to Hoefer was executed and delivered, and the agreed consideration therefor was paid.

The court found. that Robinson made,- executed and delivered a deed to Hoefer on the 23d day of February, 1905, and that Van Tassel conveyed the premises in question to him on the 24th day of February, 1905. When the latter conveyance was made he held, for a nominal consideration only, the Robinson deed, and the character of his possession was not changed by the fact that but for it he would not have accepted and paid for the Van Tassel deed. The two conveyances were separate and distinct transactions. Robinson conveyed directly to Hoefer at the request of the latter’s lawyer, and, assuming without conceding that Frazer was not the agent of Hoefer in procuring that conveyance, he was but a mere intermediary. It is plain that said defendant or the lawyer on his behalf received the Robinson deed knowing that only a nominal consideration was paid therefor, and it is now1' settled that to constitute óne a purchaser for a valuable consideration within the meaning of the term as used in the Recording Act,. substantial value, and not merely a nominal sum, must be paid. (Ten Eyck v. Witbeck, 135 N. Y. 40; Turmer v. Howard, 10 App. Div. 555.) Even though said defendant Hoefer is not chargeable with Frazer’s knowledge, he cannot invoke the protection of the Recording Act for a conveyance procured at his request, directly to himself, and for which he knew that only a nominal consideration was paid his grantor.

Moreover, the surrounding circumstances are such as at least to cast suspicion on the good faith of all the parties concerned in the procurement of the Robinson deed. The fact that Robinson was willing to execute a deed for a nominal consideration was sufficient to put a prudent person on inquiry, notwithstanding the outstanding tax title which was assumed to be invalid. Unless the defendant ór his lawyer was purposely blind, they would have been likely to inquire why Robinson was so willing to execute a deed. In Ten Eyck v. Witbeck (supra) the court, per Maynard, J., say : “ If the sum which the seller is willing to take is grossly disproportionate to the value of the thing which is the subject of the negotiation, it is strong proof of a defective title and sufficient to put a prudent man upon inquiry, and if the buyer neglects to diligently prosecute such inquiry, he may not be awarded the standing of a bona fide purchaser.” While I do not say that the proof in this ease requires a holding as matter of law that the defendant was not a purchaser in good faith, Í do think that in the absence of any explanation of the failure to make inquiry respecting Bobinson’s willingness to give a deed for a nominal sum, the evidence justified such a finding as matter of fact.

It appears to have been assumed on the trial that the 'tax title was not valid. The court made no findings in respect thereto, but rested the judgment on the finding that the defendant Hoefer was a purchaser in good faith and for á valuable consideration' of the Bobinson title, On a new trial the action should be treated as one to determine conflicting claims to real property, and all questions that may arise between the parties should be determined.

The judgment should be reversed on the law and the facts. ■

Judgment affirmed, with costs. 
      
       See 1 R. S. 756, § 1, as amd. by Laws of 1896, chap. 572, § 2; Real Prop. Law (Laws of 1896, chap. 547), § 241; Stat. Const. Law (Laws of 1892, chap. 677), § 33.— [Rep.
     