
    Hemmer v. Hustace.
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    Vendor and Vendee—Rights and Remedies—Detective Title—Mortgage Sale.
    Under Code Civil Proc. N. V. § 2393, declaring that in foreclosure by advertisement, if the property consists of two or more distinct lots, they must be sold separately, and as many only shall be sold as are necessary to satisfy the amount due, a sale of several distinct lots as a whole confers such a doubtful title that one subsequently agreeing to purchase a part of the property from another who derives his right though such sale is not obliged to complete his contract, but may recover the amount paid thereon, where it is not shown that the sale of the whole was necessary to discharge the amount due.
    Appeal from special term, New York county.
    Action by F A. Hemmer against W. A. Hustace. Defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Macomber, JJ.
    
      Walter S. Allerton, for appellant. James C. Be la Mare, for respondent.
   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 No. 213, as indicated upon a map of the village of Melrose South. One Si tilling, 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 Si tilling died seised 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 they to have been about five years and five mpntlis 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 parceled out which were covered by «the mortgages, to which reference has also been made; lots 213 and 214 being 59 feet 2J inches front, each, on Cortlandt avenue, and lot 212 being 50 feet front on Denman street, now One Hundred and Fiftieth street; and the mortgage upon the foreclosure of which the defendant acquired title describes 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 follows, ” 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. Church Home v. Thompson, 15 N. E. Rep. 193; Hellreigel v. Manning, 97 N. Y. 56; Jordan v. Poillon, 77 N. Y. 518; Brooklyn v. Armstrong, 45 N. Y. 234; Fleming v. Burnham, 100 N. Y. 9, 2 N. E. Rep. 905. 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, §§ 1678, 2393. These sections were designed to prevent the un■ne.i essary 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. Pr. 225; affirmed, 88 N. Y. 646. Ib 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, 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 to 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, represented 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 his purchase, 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’» title,—to challenge it by reason of the alleged invalid sale herein considered. The case of Insurance Co v. Bronson, reported in 22 N. Y. Wkly. Dig. 452, and upon which the appellant relies with great confidence, is not eontrollingherein upon the question presented in regard to the sale of the premises asoné parcel. In that case the mortgaged premises consisted of 10 city lots lying contiguous to one another, and separated only by imaginary lines. In this-case, as we have seen, the lines dividing the lots were distinct, palpable, 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 these reasons, in addition to those assigned by the justice in the court below, we think the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., (concurring.)

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.

Maoomber, J., concurs.  