
    Frederick A. Hemmer, Resp’t, v. William Hustace, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Contract of conveyance — Damages for failure to perform — Doubtful title sufficient to sustain action.
    Where the plaintiff brought an action to recover damages for the failure of the defendant to perform a contract of conveyance to the plaintiff of certain real estate in the twenty-third ward, New York city, the plaintiff alleging that the defendant could not give a good title for the reason that he derives his title from a purchase under foreclosure proceedings by advertisement and sale of the premises covered by the mortgage in one parcel, when they were in fact distinct parcels, and should under the provisions of the law be sold separately. Held, that it is not necessary, in order to entitle the plaintiff to recover, for the plaintiff to show that the foreclosure proceedings were void. It is sufficient if the plaintiff shows that the defendant’s title is doubtful and not marketable.
    2. Same—Title.
    A title open to a reasonable doubt is not a marketable title and the court cannot make it such by passing upon an objection depending upon a disputed question of fact or a doubtful question of law in the absence of the party in whom the outstanding right was vested.
    
      3. Same — Mortgage foreclosure—Code Civil Pro., §§ 1678-3393— What separate and distinct parcels within these sections.
    A mortgage was made upon three lots of ground, describing them as, “ all those three lots, Nos. 313, 313 and 314, on a map of the village of Melrose South, which said lots when taken together are bounded and described, as follows: ” At the time the mortgage was made there were erected on lot No. 313, two separate buildings, having no connection with each other. Under the proceedings of foreclosure of the mortgage by advertisement, the premises covered by the mortgage were sold in one parcel. Held (1), that the premises were separate and distinct parcels and were within the provisions of sections 1678 and 3393 of the Code, requiring them to be sold separately.
    4. Same—Code Civ. Pro., § 3393—Provisions of this section absolute, MANDATORY AND PROHIBITORY.
    Section 3393, which provides that where the property consists of two or more distinct farms or lots, as many only of the distinct farms or lots “ shall be sold, as it is necessary to sell in order to satisfy the amount due at the time of the sale, and the costs and expenses allowed by law,” is intended to be absolute, mandatory and prohibitory, and as there is nothing upon the record of these foreclosure proceedings to show that the sale of the entire property, consisting of distinct parcels, was necessary to realize the amount due at the time of the sale, which is an indispensable factor in the defendants title, the plaintiff is relieved of his obligation to complete the contract, and is entitled to recover in this action. The case of The Mutual Life Ins. Go. v, Bronson (33 N. Y. Weekly Digest, 453), distinguished and explained.
    Appeal from a judgment of the special term, the action having been submitted upon an agreed state of facts.
    
      Walter 8. Allerton, for app’lt; J. C. Be La Mare, for resp’t.
   Brady, J.

This action was brought by the plaintiff to recover damages for the failure of the defendant to perform a contract of conveyance to the plaintiff of certain real property in the twenty-third ward of this city. The plaintiff insists that the defendant cannot give a good title for the reason that he derives his from a purchase under foreclosure proceedings by advertisement and the sale of the premises covered by the mortgage in one parcel when they were in fact distinct parcels, and should under the provisions of law have been sold separately. The premises in question were part of lot number 213 as indicated upon a map of the village of Melrose South. One Sichling, the then owner, made three several mortgages to the defendant, covering the premises and other property, describing them as “all those three certain lots known and distinguished. by the numbers 212, 213 and 214,” on a map entitled ‘ map of the village of Melrose South, etc.,’’ and which said lots when taken together are bounded and described as follows, etc. It appears that at the time of making the mortgages there were on the premises described in the complaint two buildings, one a four-story brick store, and a two-story frame house, both buildings being on lot 213, already mentioned, but having no connection with each other, and occupied by different parties.

It also appears that Sichling died seized of the premises but subject to the mortgages mentioned, on the 16th day of August 1875 leaving a will, the provisions of which it is not necessary to state, but from which it appeared that in disposing of his estate he included in the objects of his bounty his son Herman Sichling who from the record appears then to have been about five years and five months of age and who was consequently an infant at the time the defendant acquired title, namely in 1881. In the map of Melrose South to which reference has been made, the three lots are distinctly parcelled out which were covered by the mortgages to which reference has also been made, lots 213 and 214 being fifty-nine feet two and one half inches front each on Cortlandt Avenue, and lot 212 being fifty feet front on Denman Street, now One Hundred and Fiftieth street. And the mortgages upon the foreclosure of which the defendant acquired title describe the premises as “all those three certain lots, pieces, or parcels of land known and distinguished by the numbers 212, 213 and 214 on the map of the village of Melrose South” and which lots, when taken together, were bounded and described as followed etc.: On these facts the question presented in limine as suggested by Ingraham, J., in his opinion was, is there a reasonable doubt as to the vendor’s title such as to affect the value of the property or interfere with its sale to a reasonable purchaser. And this inquiry springs from the well established rule that the purchaser of real estate is entitled to a good marketable title free from all reasonable doubt. Methodist Church Home v. Thompson, 13 N. Y. State Rep., 127; Henry Hellreigel v. John B. Manning, 97 N. Y. 56; Jordan v. Poillon, 77 id., 518; Brooklyn Park Com. v. Armstrong, 45 id., 234; Fleming v. Burnham, 100 id., 9. The premises as we have seen from the map of Melrose South and in the description in the mortgages, especially when considered with reference to the distinct tenements and their occupation by different persons, appeared beyond doubt to be separate and distinct parcels and thus to have been within the prohibition contained in the provisions of the Code, sections 1678, 2393. These sections were designed to prevent the unnecessary sale or sacrifice or both, of property mortgaged, a circumstance which would doubtless occur, were it not for these beneficent provisions of law still continued by which apparently well laid schemes are frustrated. Section 1678, which is designed to provide for judicial sales declares that if the property consists of two or more distinct buildings, farms or lots they shall be sold separately unless otherwise ordered by the court. Wallace v. Feely, 61 How., 225 ; affirmed 88 N. Y. 646.

It has been held that this section was directory, but subsequently, and by chapter 682 of the Laws of 1881, that section was amended by substituting the word “shall” for “must,” and this would seem to be an indication on the part of the legislature to obviate the construction which has been placed on the- word “must” by pronouncing it to be directory merely in its effect. Section 2393, and which is one of the sections relating to foreclosure by advertisement, declares that if the property consists of two or more distinct farms, tracts or lots, they must be sold separately, but has the further provision “ and as many only of the distinct farms, tracts or lots shall be sold as it is necessary to sell in order to satisfy the amount due at the time of the sale, and the costs and expenses allowed by law,” although the word “must” is used in this section, and if its effect were to be construed in view of the decision to which reference has been made, it would be necessary to declare it directory such a conclusion would not be justified, taking the whole context of the section into consideration and from which it is manifest that it was intended to be absolute and mandatory as evidenced by the prohibition of the sale of any more of the farms, tracts, or lots than necessary tó satisfy the amount due at the time of the sale." The section it may be said with great propriety, is not only mandatory, but prohibitory, its whole context considered together. There is nothing upon the record to show'that the sale of the entire property, presented as it was on maps and by description in the mortgages to consist of distinct and separate parcels was necessary to realize and discharge the amount due at the time of the sale, and this is an indispensable factor in the defendant’s title. It became necessary for him to establish the fact that the prohibition of a redundant sale did not apply to the proceedings under which he acquired title. It is not necessary in this case to determine whether the sale was void or not when we have reached the point establishing a doubtful title under the authorities to which reference has been made, and therefore in the administration of justice it becomes our duty to declare the purchaser relieved from his obligation to complete, and in such an action as this, to declare the plaintiff entitled to recover.

However conclusive a judgment may be where all the parties are before the tribunal pronouncing it, the court stands in quite a different attitude where it is called upon to compel a purchaser to take title under a judicial sale who asserts that there are outstanding rights and interests not cut off or concluded by the judgment under which the sale was made. The objection may involve a mere question of fact, or it may involve a pure question of law upon undisputed facts. The purchaser, however, is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title, and the court cannot make it such by passing upon an objection depending upon a disputed question of fact or a doubtful question of law in the absence of the party in whom the outstanding right was vested. Fleming v. Burnham, supra.

There is nothing to show that the infant heir of the mortgagor hereinbefore mentioned, and who has not yet arrived at maturity, is cut off by any proceeding from his right to assail the defendant’s title—to challenge it by reason of the alleged invalid sale herein considered.

The case of The Mutual Life Insurance Company v. Bronson, reported in the 22 N. Y. Weekly Digest, page 452, and upon which the appellant relies with great confidence, is not controlling herein upon the question presented in regard to the sale of the premises as one parcel. In that case the mortgaged premises consisted of ten city lots lying contiguous to one another and separated only by imaginary lines. In this casq, as we have seen, the lines dividing the lots were distinct, palpably not imaginary, and Were characterized by different tenements, and as we have suggested, and as has also been suggested, intended by the mortgagor to be regarded as separate and distinct parcels when the mortgage was executed.'

For those reasons, in addition to those assigned by the justice in the court below, we think the judgment appealed from should be affirmed, with costs.

The question presented seems to be the same as that in the case of a decree of foreclosure expressly requiring the premises to be sold separately; a purchaser was asked to take title, the premises having been sold together, in plain violation of the terms of the decree.

The statute is the decree under which the sale is had, and ■ its due claim must be followed.

Van Brunt, Ch. J., and Macomber, J., concur.  