
    Betty Schoener et al., App’lts, v. Marx Lissauer et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1887.)
    
    
      1. Reversal of judgment—When assumed to be for error of law.
    Where the order of reversal made by the general term in a case does not state that the judgment of the special term was reversed upon an error of fact, in order to sustain it, error of law must be shown.
    2. Cloud on title—Removal of—Proper case for.
    A mortgage was given by a woman on land owned by her to parties, as a condition of the cessation of criminal proceedings instituted by them against her son. This instrument remained on record after her death. Held, that the facts presented a proper case for an action for the removal of a cloud on the title on the real property by the heirs of the mortgagor.
    8. Same—Action for removal—Time to bring not limited by Code Civ. Pro., §882.
    
      Held, th t the limitation set forth in Code Civil Procedure, section 382, did not apply to such an action.
    4 Same—Action for removal—May re brought by owner of fee at any time during ownership.
    
      Held, that an owner of the fee of real property has the right at any time during the period of his ownership to invoke the aid of equity to have an incumbrance apparent, though not real, discharged of record. This right, so long as the cloud continues 'to exist, is never barred by the statute of limitations. The cause of action is not the creation of the cloud, but its existence.
    
      Appeal from a judgment of the supreme court, general term, fourth department, reversing a judgment entered at the Onondaga county special term and ordering a new trial, with costs to abide the event.
    
      Louis Marshall, for app’lts; Julius Lipman, for resp’ts.
    
      
       Reversing 36 Hun, 100.
    
   Rapallo, J.

—The order of reversal in this case does not state that the judgment rendered at special term was reversed upon any question of fact. Error of law must, therefore, be shown to sustain the order of reversal.

The court, at general term, while conceding that the facts found were in other respects sufficient to authorize the judgment, placed their reversal wholly upon the ground that the action was barred by the statute of limitations. This is the only error of law assigned, and none other is disclosed by the case.

The action was brought by the heirs at law of Mrs. Babet Marx, deceased, to procure the cancellation and discharge of a mortgage on her real estate, executed by her in May, 1873, and duly recorded and held by the defendants. She died on the 22d of September, 1879. No attempt had been made in her lifetime to enforce the mortgage, and on her decease it remained on record an apparent lien upon her real estate, which had descended to the plaintiffs as her heirs at law. This action was commenced on the 29th of September, 1879, to restrain the enforcement of said mortgage and procure it to be canceled of record, on the ground that its execution had been procured by duress.

The trial court found that the execution of the mortgage by the said Babet Marx had been procured by the plaintiffs by their threats and menaces, that unless she gave said mortgage they would cause her son to be sent to the state prison for the offense of larceny and embezzlement, which they charged him with having committed against them when in their employ, and for'which he was under arrest and indictment on their complaint, and about to be tried; that they stated to the sister and brother-in-law of the prisoner that he could regain his freedom in no other way than by the payment of $2,000, and that if that sum was not paid he would certainly have to go to states prison; that, after negotiations, the defendants communicated to the mother of the prisoner, through his sister, a statement that he would be sent to states prison unless the mother would pay $1,000 in cash and give a mortgage on the premises in question, the defendants agreeing not to harass her for the said mortgage during her lifetime; that if these terms were complied with, they would release the prisoner if in their power, if not, he would be sent to states prison; that said Babet Marx, the mother, after a long struggle, consented to these terms and executed the mortgage and paid the $1,000 in cash, while under the influence of fear, terror, coercion and duress, created by the threats of the defendants, and believing that they would be carried into execution, and’ the prisoner was immediately thereafter discharged on his own recognizance. '

On these facts the court at special term rendered judgment, directing the cancellation of the mortgage and requiring the defendants to discharge it of record. Upon the merits, this judgment is sustained by Bayley v. Williams, 4 Giff., 638; affirmed, L. R. I. H. L. Cases, 200; Davies v. London, etc., Ins. Co. (8 L. R., Ch. Div., 469), and is not in conflict with Solinger v. Earle (82 N. Y., 393), or Haynes v. Rudd, 102 id., 372; 2 N. Y. St. Rep., 45.

The case made by the complaint and findings was a proper one for the removal of a cloud upon the title of the plaintiffs to the real estate which they had inherited from their mother. The mortgage was certainly an apparent lien upon their title, and the facts which constituted their defense to it could only be established by extrinsic evidence.

The court at general term reversed the judgment on the sole ground that the action was barred under section 382 of the Code, subdivision 5, which applies a six years’ limitation to actions ‘ to procure a judgment other than for a sum of money, on the ground of fraud, in a case which on the 31st day of December, 1846, was cognizable by the court of chancery,” in which class of cases the cause of action is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.

We are of opinion that this limitation does not apply to an action like the present one, to remove a cloud upon the title to land. The action is not brought to recover the land, that being already in the possession of the plaintiffs, but to compel the cancellation of an instrument to which they have a good defense, but which constitutes an apparent hen, and, so long as it remains outstanding, injuriously affects their title, and their defense to which, resting on extrinsic facts to be established by evidence, may be imperiled by' the lapse of time and the consequent loss of testimony. Should the defendants ever seek to enforce their mortgage, the plaintiffs could not by any lapse of time be barred on the right to prove the facts which constitute their defense to it, although they might be seriously embarrassed in the practical exercise _ of that right. It is an acknowledged head of equity jurisdiction, resting on these grounds, to remove clouds upon the title to land, at the suit of the owner of the fee. Such owner has a right to invoke this aid, and to have an apparent, though not real incumbrance, discharged of record at any time while he continues to be owner.

This right, as said in some of the authorities, is never barred by the Statute of Limitations so long as the cloud continues to exist. Miner v. Beekman, 50 N. Y., 337, 343. The cause of action is not the creation of the cloud, but its existence, its effect upon the title of the owner, and his right to have it removed. That is a continuing right which endures as long as the occasion for its exercise, and is not limited by any statute, unless it can be the ten years’ limitation upon equitable actions not otherwise provided for (Code, § 388), which, even if applicable, does not affect the right of the plaintiffs in this case. But a few months more than six years had elapsed after the execution of the mortgage when this action was commenced. It was not until the death of Mrs. Marx in September, 1879, that the right of the plaintiffs, as her heirs-at-law, to demand that their land be discharged of the apparent lien of the mortgage, accrued.

After that event and immediately before the commencement of this action the plaintiffs demanded of the defendants the execution of a satisfaction-piece of the mortgage, and they refused to execute the same. The plaintiffs thereupon promptly brought this action and we think that they were entitled to the relief demanded.

The order of the general term should be reversed and the judgment entered at special term affirmed, with costs.

All concur.'  