
    Henry C. Griffin, as Trustee for the Benefit of the Bonds Secured by a Mortgage or Deed of Trust, Executed by the Trustees of Solomon’s Lodge No. 196, Free and Accepted Masons, Respondent, v. Louis Baust, Respondent, and Others, Defendants; Thomas G. Price, Purchaser, Appellant.
    
      Marketable title —encroachment of a building on another lot — effect of a subsequent ownership of both lots by the same person — notice of the appointment of a new trustee of a moHgage— authority of an agent to execute a lease for ntwre than a year— it must be in writing.
    
    One Bird, a member and one of the trustees of a Masonic lodge, was employed by it as superintendent and architect to erect a building on a lot belonging to the lodge on which the lodge had previously executed a mortgage to a trustee to secure certain bonds, and while so acting Bird established the south line of said building, he himself 'being the owner of the lot which abutted upon the lodge lot on the south. A question.having arisen as to whether the building encroached upon Bird’s lot, he conveyed to the lodge a strip of land southerly of and adjoining the building, one foot wide. Thereafter the lodge conveyed to Bird the entire premises, including the one foot conveyed to it by Bird, and subsequently Bird conveyed the same premises to one Baust, subject to the payment of the bonds and mortgage which Baust assumed.
    
      
      Held, that Bird and those who claimed under him were estopped from subsequently alleging that the wall encroached on the adjoining lot, as the encroachment ceased at the moment when he became the owner of both lots, and any conveyance of the adjoining lot subsequently made by him would be chargeable with the servitude of the encroaching ■wall ;
    That the Supreme Court had power on the death of the trustee of the mortgage to appoint a successor, and that the fact that the holder or holders (who were unknown) of one twenty-first part of the bonds had not joined in or ratified such appointment, did not deprive the court of jurisdiction to make it;
    That a title acquired at a sale of the premises under a foreclosure of such mortgage, at which sufficient money had been realized to pay all the bonds, was not affected by the fact that the substituted trustee had been so appointed.
    A lease under seal for more than a year executed by agents, not authorized in writing by the lessor to execute it on his behalf, is void under the Real Property Law (Laws of 1896, chap. 547, § .224), and is not entitled to be recorded.
    Appeal by Thomas G. Price, a purchaser at a foreclosure sale, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of January, 1898, requiring.him to accept the title to premises sold under foreclosure in the action, and to complete his purchase;
    
      John H. Rogan, for the purchaser, appellant.
    
      Joseph W. Middlebrook, for the plaintiff, respondent.
    
      Greene & Johnson, for Louis Baust, defendant, respondent.
   Goodrich, P. J.:

The premises in question were sold to the appellant Price by a referee, under- a judgment of foreclosure and sale, for the sum of $23,250, and the deposit of ten per cent was made with the referee. The purchaser refuses to accept the referee’s deed on the following grounds:

(a) That the building upon the premises, purchased by him herein, encroaches upon the adjoining ■ premises on the southerly side, and' also on the northerly side, whereby the value of the premises sold is materially and- largely diminished, and the record owner of said adjoining premises - claims that the foundation of the southerly wall - of said building encroaches upon his land to a considerable extent beyond the encroach of said wall, and he notified the purchaser that he intended to commence an action to compel the removal of said wall and foundation at once.
(5) That the appointment of Henry C. Griffin as trustee, under the mortgaged (sic) foreclosed in the above-entitled action, is invalid.
(c) That there is an outstanding lease of the premises sold made to Isaac H. Lnbin, dated September 29th, 1896, and recorded in the office of the register of the county .of Westchester, in liber 1460 of conveyances, page 140, for the term of three years from October 1st, 1896, with the privilege of a renewal for three years.”

Prior to January 12, 1885, the defendant James Bird conveyed to Solomon’s Lodge No. 196, Free and Accepted Masons, the premises at Tarrytoxvn, described in the mortgage, complaint and judgment, fronting forty feet on Orchard street and thirty-five feet on Oottage Place, and bounded on the north by Central avenue and on the south by lands of Bird, who, at that time, owned the premises adjacent' on the south, more than eighty feet in width. At the date named the lodge executed a mortgage for $21,000 on the premises, conditioned for the payment of 210 bonds, each of the par value of $100. D. O. Bradley was the trustee named therein, and continued to be trustee until his death in February, Í895. A petition was presented to the Supreme Court in Westchester county for the substitution of a trustee in his place, and the plaintiff Griffin was appointed by order of the court, made on November 14, 1896.

As to the first objection, of encroachment, it appears that after the Conveyance to the lodge the latter erected upon the premises a large building which encroached on the land of Bird, adjoining it on the southerly side, from five-eighths of an inch to one inch.

In the affidavit of the defendant Bird, used on the motion, he stated that at the time of the execution of the mortgage he was a member and one of the trustees of the lodge, and was employed by it, as superintendent and architect, to erect the building, and that he acted in that capacity, and that he, being the owner of the adjacent premises (on the south), first established the south line of said building.” At that time he was still the owner of the land south of the building, and some question, apparently, having arisen about the encroachment of the wall upon his adjacent lot, he conveyed to the lodge a strip of land southerly and adjacent to the building, one foot in width.

At a later period, and in December, 1894, the lodge conveyed to Bird the entire premises, including the premises described in the "mortgage and the additional foot of land, subject to the payment of the bonds and mortgage above referred to. In July, 1896, Bird conveyed the same premises to the defendant Baust, subject to the payment of the bonds and mortgages, which Baust, in the deed, ■agreed to assume and pay. Thus it appears that, since the' execution of the mortgage, the lodge, Bird and Baust have, each in turn, and respectively at the same time, owned the forty feet, one inch, included in the mortgage, and the adjacent strip of one foot, so that the encroachment, if any existed, ceased on the instant of the common ownership of the two parcels by. each of the three parties named.

In the case of Katz v. Kaiser (154 N. Y. 294) the doctrine is laid down that if the owner of a lot on which there, is a building whose wall encroaches upon the adjoining land acquires title to the adjacent lot, the encroachment ceases eo instcmti ¡ even if he subsé■quently severs the title to the lots, the adjoining lot is charged with the servitude of the wall, and the title to the dominant lot is not open to the objection that it. encroaches upon the adjoining lot.

In addition to this, it will be observed that Bird established the division line between the southerly boundary of the premises conveyed to the lodge, at the time he was the owner of the premises adjacent on the south, and erected the wall in question. It is clear "that this action on his part, taken in connection with the subsequent conveyances, would estop him to deny the proper location of the wall, even without any such long continuance of. the location as the authorities hold to be binding between the owners of adjacent lots.

The second part of the first objection is that the eaves of the building on the north side overhung a strip of land between such wall and Central avenue, but the record shows that this strip was voluntarily thrown into the street by the owner; that the village has merely an easement, and that the official engineer and surveyor Of the village has testified that the building, in this respect, does not violate any ordinance of the village. This objection is not specifically argued in the appellant’s brief.

The second objection, to the substitution of the plaintiff as trustee in place of Bradley, rests upon the contention that due notice of application for his substitution was not given to the holders of all the bonds secured by the mortgage. Chapter 185 of the Laws of 1882 provides that “ Upon the death of a surviving trustee" of an express trust, the trust estate shall not descend to his next of kin or personal representatives, but the trust, if unexecuted, shall vest in the Supreme Court, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court. But no person shall be appointed to execute said trust until the beneficiary thereof shall have been brought into court by such notice, and in such manner as the court may direct.”

In New York Security Co. v. Saratoga Gas Co. (88 Hun, 569, 584) a question arose as to the appointment by the court of a new trustee of a mortgage in place of the one named in the mortgage, where the original trustee had become insolvent. The court held that “ The plaintiff is properly acting as trustee of the gas company. The Court of Chancery had jurisdiction of trusts and trustees, and had power, independent of any statute, to remove a trustee on good cause shown, and to appoint another in his place. The Supreme Court has succeeded to the jurisdiction and power of the Court of Chancery, and it seems to me unnecessary to cite authorities to prove its jurisdiction and power to appoint one trustee in the place and stead of another. The original trustee under the mortgage becoming insolvent, the Supreme Court had jurisdiction to appoint a successor trustee ; its order making such appointment was, therefore, not a void order, but may have been, under the circumstances, irregular.” But, under my views of the rules to be adopted on this appeal, it is not necessary to consider this question. The court had jurisdiction to make the order and to require such notice as it deemed expedient, and it must be presumed that sufficient notice was given.

The petition for the substitution was presented or joined in by the holders of $12,000 of the bonds, and has since been ratified by all the bondholders, except the owners of $1,000, whose whereabouts cannot be discovered, so that the only question is whether the failure to notify the holders of ten bonds constitutes a valid objection to the appointment of the trustee. It is not necessary to inquire whether the appointment of Griffin, as trustee, can be attacked collaterally. The only persons who could attack were the holders of the ten bonds, the lodge, and Bird and Baust. All of these, except the bondholders, were parties defendant in the foreclosure suit. ■ The complaint alleged the due appointment of Griffin as trustee. None of these parties defended, and as to them the judgment, becomes res judicata as to the due appointment of Griffin as trustee, so that none of these parties can raise the question of defective appointment.

■ The price to be paid for the property is sufficient to pay the bonds, interest and costs. "When the purchaser has completed the sale and paid the money into court, it will be sufficient time for the court, at Special Term, to provide security for such bondholders; as, for instance,, by having the amount of' the bonds deposited with the treasurer of Westchester county, or some other suitable depositary. This question, however, does not arise ón this appeal.

■ The third objection relates to a lease to one Lubin, for the term of three years, of a part of the mortgaged premises, dated September 29, 1895, and recorded May 29, 1897. The lessors named in this léase were Free and Murray, as agents for Louis Baust,” and it was signed “ Free & Murray, Agts. (Seal.) ” The acknowledgment reads, “ beforé me personally came Free & Murray, agents for Louis Baust and Isaac H. Lubin, to me known, and known to me to be the individual described in, and who executed the foregoing instrument, and who severally acknowledged that they executed the same,, and the said Free & Murray duly- acknowledged that they «executed the foregoing lease as the agents of said Louis Baust.”

The Real Property Law (5 R. S. [9th ed.] 3588 [1896, chap. ■547], § 224) provides that “ a contract for the leasing for a longer-period than one year, * * . * of any real property or an interest therein, is void, unless the contract or some note or memorandum thereof expressing the consideration is in writing, subscribed by the lessor * * * or by his lawfully authorized agent.”

It appears that Free & Murray had no written authority to make this lease. There was, under these circumstances, no statutory' authority for the recording of the lease. Besides this, Baust was a party to the foreclosure suit, and is estopped by the judgment.

' The objections raised by the purchaser were not valid, and the ■order must be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  