
    Caroline Baecht, Appellant, v. Louis Hevesy and Others, Defendants. Julius Lewine, Respondent.
    First Department,
    November 23, 1906.
    Beal property—when title marketable — when lis pendens no cloud on title — deed made when another holds adversely —• grantee first recording deed protected — evidence—burden of proof to show grantee’s knowledge of prior conveyance—foreclosure—when purchaser not relieved.
    A lis pendens does not in itself constitute a cloud or incumbrance upon lands, and the question as to whether the title to such lands is marketable depends on the validity of the claim represented by the Us pendens, which matter will be considered by the court when a vendee refuses to complete his purchase.
    A deed made when another grantee is in actual adverse possession is absolutely void by virtue of section 225 of the Real Property Law, and a lis pendens filed by a successor of the grantee in such void deed is not a cloud upon the recorded title which warrants a purchaser at foreclosure in refusing to complete his purchase.
    Moreover, when the deeds forming the alleged chain of title of one filing a Us pendens have never been recorded, and there is no proof that the claimant’s immediate grantor ever claimed title, while, on the contrary, a quitclaim deed from the original grantor to the present owner made while the latter was in actual possession, has been recorded, the latter title prevails by virtue of the Revised Statutes (1 R. S. 756, §§ 1, 4) then in force, making an unrecorded conveyance void as against a subsequent purchaser in good faith and for a valuable consideration, whose conveyance is first recorded.
    A purchaser at foreclosure, who refuses to take title on the ground that the owner of the lands had knowledge of a prior unrecorded conveyance to another grantee, and thus was not a purchaser in good faith, is under the burden of Showing that knowledge. It is not established merely because a former owner of the unrecorded title was made defendant in a prior action of foreclosure. ,
    When a purchaser at foreclosure refuses to take title, and the lands are resold for a smaller sum, specific performance by first bidder cannot be enforced; he is liable only for the difference between his bid and the sum realized on the second sale. Moreover, he is only liable for that difference when the resale is made upon the same terms as the first; and when it appears that the second sale, unlike the first, was made subject to the alleged claim of a third party filing a Us pendens, the first purchaser cannot be held for the difference between his bid and the amount realized on the second sale.
    Laughlin, J., dissented.
    
      Appeal by the plaintiff, Caroline Baechtpfrom an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of July, 1906, granting the respondent’s motion to be relieved from his purchase at a foreclosure sale and directing the return of a deposit made on said- purchase. . •
    
      Emanuel J. Myers, for the appellant.
    
      Morris Meyers, for the respondent.
   Scott, J.:

■This is an action to foreclose a mortgage upon two lots of land, described and known as lots Nos. 170 and 171 on'the map of Washingtonyille, in that portion of the. city of New York now known as the borough' of The Bronx and formerly constituting a. portion of Westchester county. The mortgage foreclosed was the subject of a former foreclosure action, in the year 1890, as the .result- of which the plaintiff became the purchaser of the property and received a deed from the referee and went into possession. In that action one Louis Hevesy, one timé record owner of the property, was made defendant and upon proof being furnished that it was impossible to obtain information as to his whereabouts, an order was made dispensing with the service of- the summons upon him. Recently the plaintiff sought to sell the property, and it was suggested, as an objection to her title,- that it was possible that Hevesy might have been dead when the foreclosure action was begun, and that, if. so, the decreé would not have cut off the equities. of his widow, heirs • at law, devisees or other successors in interest. Thereupon the present action was begun to cure this suggested defect. Upon the sale, on March 28, 1906, the respondent became the purchaser, at a price apparently somewhat in excess of the value of the property. By the terms of sale the title was, to have been passed on April 28, 1906, but was adjourned from time'to time, at the" request of the purchaser, until May 28,1906, when the- purchaser definitely-refused to accept the' title and demanded the return' of his deposit, with interest and the expenses incurred byliim. The present motion followed upon the refusal of that demand. The basis of the. purchaser’s refusal was that one Frank Fritscli had asserted a claim to ownership of the property and had commenced, an action to establish that claim, having filed a Us pendens upon Hay ninth. It is well settled that a Us pendens, by itself, does not constitute a cloud or incumbrance upon a title, and does not, of itself, furnish any ground in reason why a purchaser should not be compelled to complete his purchase. (Grace v. Bowden, 10 App. Div. 541.) It becomes necessary, therefore, to inquire as to the nature and apparent validity of the claim represented by the lis pendens. It appears that in 1854 one Rosa Marini acquired the lots in question, together with two others known as Eos. 149 and 150, by a deed from one Frederick Giróte. This deed was duly recorded, but no deed appears of record from Rosa Marini (except the quitclaim deed hereinafter mentioned). It is said, however, and this does not appear to be disputed, that she executed a deed of lots Eos. 149 and 150 to Rafael Maretzek, and a deed of Eos. 170 and 171, involved in this action, to Adylly Porges, neither of which deeds was recorded. Adylly Porges in 1869 conveyed the lots affected by this action to one Bissinger, and thence by various conveyances the title of the property came to one Louis Hevesy. One of the owners had in the meantime executed a mortgage upon the property, which by various assignments came to plaintiff’s husband and then to her. All the conveyances, mortgages and assignments, from and including the deed from Porges to Bissinger were duly recorded, so that plaintiff’s record title when she became the owner of the property in 1890, under the sale in the former foreclosure action, was complete and perfect except that there was no deed on record from Rosa Marini to Adylly Porges. In 1891, Rosa Marini, then known as Rosa Herzfelder, executed and delivered to plaintiff a quitclaim deed of the premises, with habendum in fee, reciting the former conveyance to Adylly Porges, and releasing and quitclaiming to plaintiff all the title or interest, if any, that she, the said grantor, ever had or might then have in said premises. It appears that plaintiff has been in undisputed possession of the premises since her purchase in 1890, and that her husband paid full value for the mortgage upon the property upon its assignment to him. Tip to this point we can find no flaw or defect in plaintiff’s title. The claim of Fritsch, which constitutes the basis of the purchaser’s refusal to take the property, is stated as follows: It is said that in 1857 and before her reputed. conveyance to Adylly Porges, Rosa Marini conveyed the lots in question to one Rafael Maretzelc, and in the same year ' Rafael Maretzelc conveyed them to one Appolonie Maretzelc. Neither of these deeds is on record; no person professes ever to have seen them, and no evidence that they ever existed is produced," although Appolonie Maretzelc was apparently living as late as May 5, 1906, on which date she executed a deed of the lots to Frank. Ffitsch, which deed constitutes the basis of his claim to the property. It is clear, upon the conceded facts, that Fritsclr took no title under the deed from Appolonie Maretzelc. When this- deed was made the plaintiff was in the actual possession of the property,. claiming under a title adverse to that of Appolonie Maretzelc. The deed to Fritsclr was, therefore, absolutely void. (Real Prop. Law [Laws of 1896, chap. 547], § 225 ; De Garmo v. Phelps, 176 N. Y. 455; Dever v. Hagerty, 169 id. 481.) Nor had Appolonie Maretzek herself at the time of the sale to respondent any title to the property as against that of plaintiff. Apart from the utter lack of evidence that Rosa Marini ever conveyed these lots to Rafael Maretzek, or that.he conveyed, them to Appolonie Maretzelc, and assuming that such conveyances were made sometime in 1857, still, as against Appolonie Maretzelc and any one claiming under her, plaintiff’s,, title is superior by virtue of the quitclaim deed executed by Rosa Marini (Herzfelder) in 1891. At that time the plaintiff was in actual possession of the property, the deeds under which Appolonie Maretzek claims title, if existent,- had never been recorded, and there is neither evidence nor presumption that plaintiff knew or'had notice that Appolonie claimed to be the owner of the prop-' erty. Sections 1 and 4 of chapter 3 of part 2 of the Revised Statutes (1 R. S. 756) then provided that every conveyance of real estate, on being duly acknowledged or proved, shall be recorded,-and that “ every such conveyance not so recorded shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance .shall be first duly recorded; ” and section 241 of the Real Property Law now provides that every conveyance of real property, on being duly acknowledged or proved, may be recorded, and that “ every such conveyance not so recorded is void as against any subsequent pur- • chaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any por-‘ tion thereof, whose conveyance is first duly recorded.” Hence, if plaintiff was a purchaser in good faith- and for a valuable consideration, her conveyance from Bosa Marini (Herzfelder) having been recorded prior to that from Bosa Marini to Bafael Maretzelc, and his conveyance to Appolonie Maretzelc, conveyed to plaintiff an unassailable title as against Appolonie Maretzelc, whose deed has not yet been recorded, and the effect of the deed from Bosa Marini (Herzfelder) to plaintiff is none the less because it is in form what is known as a quitclaim deed. (Wilhelm v. Wilken, 149 N. Y. 447.) That plaintiff was a purchaser in good faith and for a valuable consideration sufficiently appears, and nothing is proven to the contrary by the fact that in the former foreclosure suit Appolonie Maretzelc was made party defendant. This may have been done for greater caution, or because plaintiff feared that Appolonie might assert some claim to or interest in the property. It certainly does not indicate or even suggest that plaintiff knew that Appolonie Maretzelc laid claim to a superior title to the property, for the allegation respecting her in the complaint in that action is that she had or claimed to have some lien or interest in said real estate subject to the lien of said mortgage.” If, therefore, the plaintiff had no knowledge or notice when she took the confirmatory deed in 1891 that Appolonie Maretzelc had or claimed a title to the property superior to that derived under the mortgage, she was a purchaser in good faith and acquired a title superior to any that Appolonie Maretzelc, or any one claiming under her, can successfully assert. If it is claimed by the purchaser that plaintiff had, as matter of fact, knowledge or notice of the adverse claim of title, it is incumbent upon him to show the fact. It is the duty of a purchaser who refuses to take title by reason of an alleged defect to point out and prove the defect upon which he relies. (Greenblatt v. Hermann, 69 Hun, 298.) The facts disclosed by the moving papers bring this case precisely within the ruling in Jay v. Wilson (91 Hun, 391). In his opinion in that case, which was adopted by the Court of Appeals (158 N. Y. 693), the late presiding justice of this court said : “ It is undoubtedly the law, as stated in Irving v. Campbell (121 N. Y. 353), * * * that a purchaser is not bound to take a title which he can defend only by a resort to parol evidence, which time, death or some other casualty may place beyond his reach, and that a purchaser will not generally be compelled to take a title when there is a defect in the -record title which can' be cured only by a resort to parol evidence. But in the case at bar there is no defect in the record title. It is complete. The purchaser would not be' compelled to resort to parol evidence for the purpose of defending his title. The sole ground upon which it is claimed that the title is not marketable is the fact that subsequent to the record of the deed of a purchaser in good faith, there appears from his grantor a deed of a previous date upon the record. This subsequent deed casts no cloud upon the title of the purchaser. His record title, is superior, and there is not a tittle of- evidence impeaching that record title. But it is claimed upon the part óf the respondents that if the grantee of the subsequent deed should show that the purchaser who paid his money for the property knew of the existence of this deed, or was in possession of the property, the title would be impeached. There is not the slightest attempt to prove that the grantee in that deed ever was in possession, or that the first purchaser had any reason to suspect the existence of any such deed. If such a procedure is to create a cloud upon title, then no purchaser is secure, because his grantor, after he has conveyed and his grantee’s deed is placed on record, may sign and acknowledge a new deed dated.back of the deed by which he has conveyed the property, and record it and thereby create a cloud upon the title. The validity of titles cannot be subject to any. such schemes or devices. The record title in the case at bar was good. It required no parol evidence to sustain it, and hence, according -to the . authority cited, the title was a marketable one.” It follows that the respondent’s objection to the title was unsubstantial and insufficient. If the matter had rested here we should have nothing to do but to reverse the order appealed from, leaving" the plaintiff to take appropriate action to enforce the purchaser’s liability under the bid. It appears, however, from the moving papers that upon the respondent’s refusal to accept the title the referee in accordance with the conditions of the terms of salé, resold the property, and that upon the resale it was 'bought in. by the plaintiff at a much less sum than had been bidden therefor by respondent.' Under these circumstances, specific performance of the respondent’s purchase cannot be enforced, and the most that could be done would be to hold him liable for the difference between the price bidden by him and the price at which the property was subsequently sold. Even this remedy, however, cannot be resorted to in the present case. In order to hold a purchaser for the difference between-the amount of his bid upon a sale which he unwarrantably refuses to complete and the bid obtained at a resale, it is essential that the resale should be made under the same terms of sale as those upon which the first sale was made, for a resale upon different terms affords no just measure of the liability of the defaulting purchaser. (Riggs v. Pursell, 74 N. Y. 370.) It appears that upon the resale the premises were offered “ subject to an alleged claim made thereto by Frank Fritsch by lis pendens and complaint filed May 8, 1906.” This was a substantial and material change in the terms of sale, and it is quite impossible to say that the inclusion of this clause therein did not operate to discourage competition for the property and thus lessen the price bid for it. . Indeed, the irresistible presumption is the other way, for the offering of the property subject to the claim of Fritsch imparted to that claim an importance to which it was not entitled and would naturally serve to frighten away possible purchasers. Under these circumstances,, while the purchaser was in the wrong in refusing to take title, and, therefore, cannot be allowed his expenses and interest on his deposit, it would be idle to remit the case for a further motion, as no damages can be awarded against him, and there ,is no reason of holding his deposit except to apply to the payment of damages.

The order appealed from will, therefore, be modified by striking out so much thereof as directs that the plaintiff pay to the respondent the auctioneer’s and auction room fees paid by him, and interest on that sum and the sum of $445 deposited with the referee, and the sum of $150 fixed and allowed for the expense of examining the title, and $10 allowed as costs of motion, and as so modified the order will be affirmed, without costs in this court.

O’Brien,. P. J., Ingraham and Clarke, JJ., concurred.

Laughlin, J. (dissenting):

I dissent and am for affirmance.

Order modified as directed in opinion, and as- modified affirmed, without costs. Settle order on notice! 
      
      See, also, Laws of 1896, chap. 572, § 2. — [Rep.
     