Opinion
April 19, 1907.
Isidor Wasservogel [ Abraham I. Spiro with him on the brief] for the appellant.
Edward W.S. Johnston [ Hyman Cohen with him on the brief], for the respondent.
The only question here presented is whether the appellant's assignor was justified in refusing to accept title to certain real property in the city of New York, and further to perform the requirements of a contract for the purchase thereof. There is no substantial dispute upon material facts. The agreement referred to covered two parcels of property, and recited that one parcel "is subject to the following mortgages: $4,500 bearing interest at 5% per annum, payable semi-annually, principal being due Feb., 1905, and a second mortgage of $3,250 bearing interest at 6% per annum, payable semi-annually, principal being due on or before one and one-half years from Feb. 27, 1905." There is no proof or claim of deceit or fraud having been exercised, but it appears that both of said mortgages contained a clause not recited or referred to in the contract, providing "that if at any time a law shall be enacted in the State of New York imposing a tax on mortgages * * * the amount of such taxes shall be paid by the mortgagor or then owner of said land, within ten (10) days after the enactment of such law and in default of such payment or in the event the amount of such taxes and interest shall exceed the legal rate of interest or in the event the payment of such taxes by the mortgagor or owner of the land shall be prohibited by law, * * * the entire principal sum of said mortgages shall become due and payable thirty (30) days after the enactment of such law." A deed conforming to the provisions of the contract was tendered plaintiff's assignor on the day agreed on for passing title, which he refused to accept, or to further perform the contract, upon the ground that said mortgages contained the clause above recited; that at the time of making said agreement it was understood and contemplated by and between the parties that said mortgages contained such clauses only as are usually inserted in mortgages; that such clauses are not usually inserted in second mortgages on lands in the city and county of New York, and were, therefore, unusual, burdensome, and not in accordance with the agreement. Several other grounds were stated at the time of the refusal, all of which were waived upon the trial. The plaintiff as assignee brought this action to recover the sum of $2,800 which had been paid to the defendant at the time of the execution of said agreement.
The learned trial justice found as matter of law that the objections made by the plaintiff's assignor were without substance and not well taken; that the title of the defendant at the time the agreement was made, and at the time the deed was tendered by him and performance demanded, was good and marketable, and dismissed the complaint upon the merits.
The rule is stated in Feist v. Block ( 115 App. Div. 211) to be that as to incumbrances of record, specified in the contract, the vendee is chargeable with notice of all that the record shows, and may only rely upon the contract to the extent that it contains express representations concerning the provisions of the incumbrances, citing in support of such rule Feltenstein v. Ernst ( 49 Misc. Rep. 262; affd., 113 App. Div. 903); Acer v. Westcott ( 46 N.Y. 384); Baker v. Bliss (39 id. 70); Cambridge Valley Bank v. Delano (48 id. 326); McPherson v. Rollins (107 id. 316); Blanck v. Sadlier (153 id. 551); Moot v. Business Men's Investment Assn. (157 id. 201). In Feist v. Block and Feltenstein v. Ernst ( supra) the same question was presented as in the case at bar, and there is no material difference between the facts involved. In the latter case Mr. Justice SCOTT states the rule as follows: "The general rule respecting the purchase of land subject to incumbrances is that, if the purchaser has notice of the existence of the incumbrance and its general nature, he is chargeable with knowledge of the contents, terms and conditions thereof, and cannot avoid his purchase, no deceit or fraud having been exercised, because he did not acquaint himself with the particular terms of the incumbrance, and finds them to be different from what he supposed. * * * All that the seller is required to do is to correctly describe the incumbrance, so far as he attempts to describe it at all. If he does this and tenders a deed subject to a mortgage answering the description in the contract, he has fulfilled his obligation."
The judgment must be affirmed, with costs.
WOODWARD, JENKS and GAYNOR, JJ., concurred.
Judgment affirmed, with costs.