Opinion
May, 1905.
Frank Gibbons and L.F. Messer, for the plaintiff, appellant.
Lincoln A. Groat, for the defendants, appellants.
E.H. Hanford and L.F. Raymond, for the respondent.
The respondent rests his claim wholly upon the written agreement. There are no findings of fact upon which equitable relief, if any, could be founded. Although the parties to the agreement therein call it a "lease" it is not a conveyance of an estate or interest in real property for life, for years, at will, or for a term less than the grantor had in the real property and it is not a lease.
The parties have also therein referred to the rights granted or agreed upon as a "privilege." If the agreement is considered as a mere license it was revoked by the death of the licensor even if there was a consideration paid therefore. ( Wiseman v. Lucksinger, 84 N.Y. 31; Eckerson v. Crippen, 110 id. 585; Cronkhite v. Cronkhite, 94 id. 323.) We think the agreement was an attempted to convey an easement in the grantor's lands. The right to lay pipes over real property and convey water from a spring thereon is an easement for the benefit of the dominant estate. ( Nellis v. Munson, 108 N.Y. 453; Wiseman v. Lucksinger, supra.) Such an interest in land is an interest in fee or of a freehold estate. ( Nellis v. Munson, supra.) The term in the agreement is stated to be "as long as the second party or any of their family own or occupy said lands." An interest for such a term is not an absolute fee because it is possible that it may at some time be terminated. It is a base or qualified fee or freehold estate. (Gerard Titles [4th ed.], 115.)
By section 208 of the Real Property Law (Laws of 1896, chap. 547) it is provided: "A grant in fee or of a freehold estate, must be subscribed by the person from whom the estate or interest conveyed is intended to pass, or by his lawful agent. If not duly acknowledged before its delivery, according to the provisions of this chapter, its execution and delivery must be attested by at least one witness, or, if not so attested, it does not take effect as against a subsequent purchaser or encumbrancer until so acknowledged."
The agreement not having been executed and delivered before at least one witness, and not having been acknowledged, does not take effect as against a subsequent purchaser or incumbrancer of the grantor. The appellant defendants are devisees of Norman W. Groat and purchasers within the meaning of the Real Property Law. (23 Am. Eng. Ency. of Law [2d ed.], 464; Stamm v. Bostwick, 40 Hun, 35; affd., 122 N.Y. 48.)
The authority of the court to direct that the mortgaged property other than the water rights described in the agreement should be first sold before selling such water rights, is dependent upon such rights having been alienated as against the defendant appellants in this action. As the agreement does not take effect as against the defendant appellants the court was in error in its direction in regard to said sale. The respondent asserts that the appeal of the defendant appellants should be dismissed because they did not answer the plaintiff's complaint. The plaintiff's complaint was in the usual form in foreclosure. It alleged generally that the defendants have or claim to have some interest in or lien upon the mortgaged premises. It is true that the defendant Strong claimed an interest in the mortgaged premises. There was no occasion, therefore, for the defendant appellants to answer the plaintiff's complaint. The defendant Strong did not serve a copy of his answer upon his codefendants. The defendant appellants appeared in the action and were present at the trial and took part therein, but no pleading had ever been served on them or either of them alleging affirmatively what rights the defendant Strong claimed in the mortgaged property, or that he sought to have his rights determined by the judgment to be entered in the action. Under such circumstances the defendant appellants should not be deprived of their right to appeal. (See Bliss v. Fosdick, 76 Hun, 508.)
The judgment should be modified by striking therefrom the provision therein adjudging that said agreement is valid and enforceable; also the provision therein adjudging that the mortgaged premises other than the rights of the defendant Strong under said agreement shall be first sold, and also the provision therein adjudging that the defendant Strong be paid his costs and charges in the action, and as so modified affirmed, with one bill of costs in this court to the appellants against the respondent.
All concurred.
Judgment modified by striking therefrom the provision that the agreement mentioned in the pleadings is valid and enforcible; also the provision therein adjudging that the mortgaged premises, other than the rights of the defendant Strong under said agreement, shall be first sold; and also the provision therein adjudging that the defendant Strong be paid his costs and charges in the action; and as so modified affirmed, with one bill of costs in this court to the appellants against the respondent.