This is an action for partition of five parcels of real estate situate in the borough of Manhattan, New York, of which
On the 18th day of May, 1911, the defendant Roland S. Pettit duly executed and delivered to the plaintiff a deed, recorded June 1, 1911, by which he granted and released to the plaintiff all his right, title and interest in and to such premises, and said Roland S. Pettit, on the 27th day of June, 1911, likewise executed and delivered to the plaintiff a confirmatory deed of the same premises containing corrections with respect to the description of the property, and it was recorded on the 3d day of February, 1912.. At the time Roland S. Pettit negotiated the sale of his interest to the plaintiff he applied to the Lawyers’ Title Insurance and Trust Company
The defendant Turner answered herein, claiming a one-twenty-fourth interest by virtue of said deed to her, which was prior to either of the conveyances to the plaintiff. The uncontroverted evidence, however, shows that the deed to her was intended as security for moneys loaned by her husband to said Roland S. Pettit, and the trial court found that it was, therefore, a mortgage; and, on further uncontroverted evidence that the indebtedness to secure which it was executed had been fully paid, the court directed that it be discharged.
The defendant Roland S. Pettit, after executing the deeds to the plaintiff, and after the same were recorded, and on th.e 30th day of June, 1913, executed a deed of all his right, title and interest in and to the five parcels of real estate described in the complaint to the defendant Hanna, as trustee for Leo H. Pettit, the wife of said Roland S. Pettit, in trust to receive the issues, rents and profits thereof, and to apply the same to the use of said Leo H. Pettit during her life, and upon her death to convey the same to Jack Lawrence Pettit in fee.
The defendant Hanna, as trustee, interposed an answer denying the conveyances to the plaintiff and denying the plaintiff’s title as alleged in the complaint and setting up the deed of trust to him, and alleging that the conveyances to the plaintiff were procured by false and fraudulent representations with respect to the value of the interest of said Roland S. Pettit and prayed that it be adjudged that the deeds to the plaintiff were null and void and that they be canceled upon such terms as the court might deem just, and that it be
The learned trial court, after the submission of the issues, filed a memorandum awarding judgment for the plaintiff with costs against the defendant Turner only, and directed that a proposed decision and judgment be submitted on notice. After passing on the requests to find, the court filed another memorandum directing that the proposed judgment should contain a provision that upon payment to the plaintiff of the amount advanced by him on the purchase of the interest of Roland S. Pettit, together with interest and other legal expenses, that the deed from Roland S. Pettit be canceled and discharged of record, and directing that if the parties could not agree upon the amount due to the plaintiff a reference would be ordered td compute the samé, and that a final judgment would be entered upon the coming in of the referee’s report. Ho finding was made by the trial court on the issue with respect to the fraud alleged to have been perpetrated on said Boland S. Pettit by the plaintiff in procuring the conveyances. The court found that plaintiff is seized in possession of an estate of inheritance in fee simple absolute .in a one twenty-fourth undivided part of the premises in question; that the conveyances to plaintiff, as already stated, were made by Boland S. Pettit of a one twenty-fourth interest of the premises in fee, and that they were executed under an agreement by which the plaintiff was to pay the said Boland S. Pettit the sum of $5,000 for the property conveyed, and that plaintiff has paid to apply thereon the sum of $800, and that the balance remains unpaid; that it was agreed at the time of the purchase that the balance of the purchase price was to be paid upon the delivery of a policy of the Lawyers’ Title Insurance Company guaranteeing the title to the property covered by the convey
By the conclusions of law made by the trial court it is found that the defendant Hanna, as trustee, is entitled to recover of the plaintiff the sum of $4,200, or such sum as may be found due on obtaining a policy of the Lawyers’ Title Insurance Company guaranteeing title to the one twenty-fourth interest conveyed by Eoland S. Pettit to the plaintiff, and that such trustee has a vendor’s lien on such interest for the balance of the purchase price agreed to be paid by the plaintiff to said Eoland S. Pettit, and that upon a sale of the premises under a judgment in this action “ without a policy of insurance having been written on the one twenty-fourth interest as aforesaid, the defendant William E. Hanna, as Trustee, will be entitled to recover from the plaintiff the difference, if any, between $4,200 and such amount as shall be paid herein under final judgment to satisfy said lien on the aforesaid one twenty-fourth interest, as a search or reference pursuant to section 1561 of the Code of Civil Procedure shall show to have been liens upon the said one twenty-fourth interest at the time of the conveyance of it by Eoland S. Pettit to the plaintiff,” and that upon payment to the plaintiff of the amount so advanced by him, together with interest and other legal expenses, the conveyance to the plaintiff by Eoland S. Pettit be canceled and discharged of record, and that the interlocutory judgment to be entered shall contain a provision for a reference to compute the amount so advanced by the plaintiff, together with interest and other legal expenses, and that upon a repayment of such amount the prayer of the plaintiff for partition of the premises shall be denied; but that if repayment shall not be made within thirty days after the amount shall be fixed, either by agreement of the parties or by reference, the plaintiff may apply to the court for such further relief as may be just and proper, and that the plaintiff sbfi.11 recover costs against the defendant Turner.
We are of opinion that the interlocutory judgment should be reversed, and that the plaintiff is entitled to an interlocutory judgment in the usual form for the partition and sale of the premises. Counsel for the plaintiff now insists that the payment of the $300 by plaintiff to Roland S. Pettit at the time of the execution of the second deed was in full satisfaction of any and all claims by the grantor for the balance of the pur
The interlocutory judgment, in so far as appealed from by the defendant Turner, should be affirmed, with costs, and in so far as appealed from by plaintiff should be reversed, with costs, and findings of fact numbered 15, 21, 22, 23 and 24 and conclusions of law numbered 2 to 8, inclusive, should be reversed and appropriate findings of fact and conclusions of law should be made directing the application of the balance of the purchase price unpaid to Roland S. Pettit to the satisfaction of any liens against his interest and for the payment of the surplus, if any, to the defendant Hanna, as trustee, and in the event that the wife of Roland 8. Pettit has not joined or shall not join in the conveyance of the interest of Roland S. Pettit to the plaintiff then the value of her inchoate right of dower shall be deducted from any balance that would otherwise go to the defendant' Hanna, as trustee, and shall be held for her benefit as provided by law in such case, and providing for the partition and sale of the premises, and that plaintiff is entitled to recover his costs against the defendants Turner and Roland S. Pettit, and for a modification of the interlocutory judgment accordingly.
Let a decision in accordance with these views be submitted for settlement on notice.
Ingraham, P. J., McLaughlin, Dowling and Smith, JJ., concurred.
Judgment modified and judgment ordered as directed in opinion, with costs to plaintiff. Order to be settled on notice.