
    Frank P. Jenks, Resp't, v. Thomas Quinn, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1893.)
    
    1. Foreclosure—Sale—Inverse order op alienation.
    A loan commissoner’s mortgage covered two pieces, one of which was conveyed by deed containing a covenant by the grantee to pay such mortgage and save his grantor harmless therefrom. The other piece was conveyed to defendant, and by him to plai .tiff's grantor by deed containing covenants of warranty. The- mortgage was afterwards foreclosed, and plaintiff’s premises sold at the request of the owner ot the other parcel, although the other piece, if first sold, would have paid the mortgage in full. Plaintiff, who was not found to have had any knowledge of the covenant in the first deed, and his grantor, were present at the sale, but did not request the sale of tbe oilier piece ; but defendant, though notified and promising to be present a id protect the property from sale, did not appear, by reason of sickness. Plaintiff, upon demand of the purchaser, surrendered possession to him. Held, that as to the holders of the mortgage, it was still a lien on all the land, and an omission to sell in the inverse order of alienation was not such an irregularity as affected the jurisdiction or vitiated the title.
    2. Same.
    Plaintiff could not be charged with knowledge of the covenant in the deed of the other parcel by the fact that it had been recorded twenty years before, in a transaction to which he was not a party.
    (Gray and Maynard, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment entered on decision of the court, a jury trial having been waived.
    
      A. P. Smith, for app’lt;
    17 O. Grombie, for resp’t.
    
      
       Affirming 41 St. Rep., 22.
    
   O’Brien, J.

The judgment from which this appeal was taken was recovered by the plaintiff as his damages for breach of a covenant of-quiet enjoyment in a warranty deed. On the 2d day of October, 1871, John and Daniel Curtin were the owners, as tenants ’ in common, of a farm in Cortland county, described as containing one hundred and thirty-seven acres and seventy-seven and a half rods of land. This land was encumbered by a mortgage of S496, given by a former owner, June 20, 1887, and which the Curtins had, upon the purchase of the land, assumed and agreed to pay. On that day they severed the joint ownership and divided the land. John received from Daniel a deed of that portion of the land which was situated west of a certain road, containing fifty-six and a half acres. In this deed Daniel covenanted as follows: “ and the party of the first part herein covenants and agrees to save the party of the second part harmless from, and pay off and liquidate a certain loan mortgage of four hundred and ninety-six dollars upon the premises herein described.” At the same date John conveyed to Daniel the remainder of the parcel described as containing seventy-nine acres. The effect of these conveyances was to make Daniel not only personally bound for the payment of the mortgage, but to charge Ms part of the land primarily as the security. Both deeds were recorded on December 11, 1871. On the same day there was recorded a deed from John Curtin to the defendant Thomas Quinn, which was dated on the 8th of December. The defendant by the conveyance became the owner of the fifty-six and a half acres that had been assigned to John and as between him and the owner of the other parcel, which had been conveyed to Daniel, the latter was primarily liable for the payment of the mortgage. On the 8th of March, 1873, the defendant, by deed containing the usual covenant of quiet enjoyment and warranty, conveyed his parcel to William T. Jenks. The consideration expressed in this deed is $2,200, and the grantee was to assume and pay a junior mortgage of about $1,400 which had been executed by the Curtins when they owned the whole parcel together.

On the 4th day of February, 1881, William T. Jenks and wife conveyed the land to the plaintiff, who is their son, and the grantee went into possession. This deed does not appear in the case, and there is no finding as to its form, or the particular consideration paid, if any. In the meantime, and at the date of the transactions which will be presently referred to, the title to the other parcel of seventy-nine acres, that had been conveyed to Daniel Curtin, became, through mesne conveyances, vested in one William D. Hunt. On November 1, 1887, the loan commissioners began a statutory foreclosure o,f their mortgage, and on the 7th of February, 1888, the fifty-six and a half acres conveyed to the plaiñtiff by his father were sold and conveyed to the purchaser, by the perfection of the foreclosure proceedings, for about $600. The plaintiff upon the demand of the purchaser surrendered possession to him, and the purchaser then leased the premises to the plaintiff’s mother, and the wife of his immediate grantor, and in this way an eviction is made out. Both the plaintiff and his father were present at the sale, under the mortgage foreclosure, and neither of them made any objection to the sale, or gave the' commissioners any information as to the facts above stated, or that the land of Hunt was primarily charged with the payment of the mortgage. The commissioners evidently wanted to proceed fairly, and had no purpose or motive to sell the plaintiff’s land improperly, but it seems, that in consequence of some mistake in the search procured from the clerks’ office, they supposed that the fifty-six and a half acres, instead of the seventy-nine acre parcel, was primarly charged with the payment of the mortgage, whereas the reverse was the true state of the case. It is found as a fact that the plaintiff’s father and grantor, who was present with him at the sale, had knowledge of all the facts, but it does not appear that the plaintiff himself had any knowledge, except such as he is legally chargeable with from the record of the deed, which contained the covenant of Daniel Curtin. The trial court has found that the plaintiff’s land was sold under the mortgage at the request of William D. Hunt, the then owner of the Daniel Curtin parcel, and in order to to save his own farm from sale on the foreclosure, which was more than sufficient in value to satisfy the mortgage.

The defendant not only had the usual statutory notice of the sale, but it is found that prior to the sale the plaintiff’s grantor, to whom the defendant’s covenant directly ran, notified him personally of the foreclosure and proposed sale, and requested him to be present at the sale and protect the title of this land, and that the defendant promised to do so, but he was not present at the sale, the evidence tending to show that it was by reason of sickness. This constitutes the breach of the covenant of defendant’s deed for which the judgment was recovered, and the damages were based upon proof of the value of the land at the .time of the foreolosure sale, and did not exceed the consideration in the deed containing the covenant. It also appears from the findings that since the deed of the seventy-nine acres to Daniel Curtin, he and his grantees paid the interest on the mortgage, and no part of it was paid by the grantees of the other parcel. While the judgment under review has some badges of suspicion, and it is difficult to resist the conclusion that it may have been the result of bad faith or some adroit management on the part of the plaintiff and his father, in co-operation with Hunt, and that it is morally unjust, notwithstanding the notice to the defendant, yet the appeal cannot be sustained on any of the grounds discussed at the argument or presented by the briefs submitted Equity would doubtless have required the.sale of the land first that was primarily chargeable with the payment of the mortgage, and it would have been sold had the commissioners been aware that it was so liable. Even after the sale, the defendant and the plaintiff could have applied to the court, in a proper action for relief against it, and, no doubt, upon the facts before us, the sale would have been set aside. But as no remedy of this kind was sought, it cannot be held that the sale was void for the reason that the other parcel should have been sold first. As to the holders of the mortgage, it was still a lien on all the land, and an omission to sell in the inverse order of alienation was not such an irregularity as affected the jurisdiction or vitiated the title. Hor do we think that the plaintiff" is estopped from maintaining the action by reason of his silence at the sale. An eviction brought about by collusion would not sustain the action for breach of covenant. Uor could the plaintiff recover any damages which could have been prevented or avoided by reasonable diligence on his part, and he owed a duty to the defendant to so conduct himself as to make the damages as little as possible. Whatever the fact may be, it is not found that the plaintiff had any actual knowledge of the covenant in the deed from Daniel Curtin, or its legal effect. IE he had, then his silence at the sale and his omission to object, or to request the sale of the other parcel, would present a serious, if not an insurmountable obstacle to his recovery. Hamilton v. McPherson, 28 N. Y., 72; Thomas v. Bartow, 48 id., 193.

But, in reason and justice, a person cannot be charged with an omission to perform a duty which he may owe to his neighbor to save him from unnecessary loss unless he has actual knowledge of the facts out of which the duty springs. It must be assumed, for the purposes of this question, that the plaintiff was ignorant of these facts. Constructive notice from the record of the deed was not, I think, sufficient to impose upon him the active duty of preventing a result which subjected the defendant to a responsibility that did not belong, to him, but to another. The general language used by the courts in numerous cases, as to the effect to be given to the record of a deed, is, perhaps, broad enough to include this case. There is no doubt that a party is chargeable with knowledge of the facts disclosed by a deed which is part of his chain of title, but that rule must be understood and interpreted with reference to the facts of the case where it is to be found. As to everything that charges the land or affects his title that is true, but the rule does not apply to a case like this, where it is sought to charge a party with knowledge of a lien on his neighbor's land. Ilere, the plaintiff is to be charged, if at all, with the consequences of omitting to act upon certain facts and to communicate them to the loan commissioners, because the legal evidence of such facts could be found in a deed executed and recorded nearly twenty years before and to which he was not a party and as to the contents of which he was, in truth, as we must assume, wholly ignorant. Such a principle would be evidently contrary to reason, and I am. not aware of any authority that sanctions it, and there is, I think, recent authority to the contrary. Collier v. Miller, 50 St. Rep., 784. The defendant’s covenant; did not run directly to the plaintiff, but to his grantor. Neither the findings nor the evidence disclose anything as to the form of the conveyance to the plaintiff. It does not appear that it contained any covenants or that his father, his immediate grantor, would have been liable to him upon the eviction. But the defendant’s covenant became annexed to and passed with the land, and it doubtless is the law that, though the plaintiff’s deed from his father was a mere quit claim, it was sufficient to transfer to himself the benefits of the covenant upon which he recovered. Hunt v. Amidon, 4 Hill, 345; Beddoe's Ex’r v. Wadsworth, 21 Wend., 120; Jackson, etc., v. Groat, 7 Cowen, 285.

We are thus constrained by the record to affirm a judgment that seems to be unjust, and which we have carefully examined with a view to secure relief for a party who is subjected to large damages by reason of events which, there is reason to believe, have not occurred in the natural order of things. The defendant, however, does not seem to be entirely free from blame in not attempting to protect himself at.or before the sale, and by neglecting to move after the sale to open it. It may be that he is not without some remedy against others. The covenant of Daniel Curtin to pay the mortgage charged him and his land with its payment. If the same obligation devolved upon his grantee, and the benefit of it passed to the defendant, then these grantees may be liable to him upon the facts adjudged. Wilcox v. Campbell, 106 N. Y., 325; 8 St. Rep., 885. These, however, are not questions now properly before us, though they are naturally suggested by an examination of the case.

The judgment must be affirmed.

Judgment affirmed, with costs.

All concur, except Gray and Maynard, JJ., dissenting.  