Edme J. Genet, Respondent, v. Nelson Davenport, impleaded, etc., Appellant

Edme J. Genet, Respondent, v. Nelson Davenport, impleaded, etc., Appellant. (Argued April 27, 1874; decided June 2, 1874.) This was an action to redeem certain premises situate in Rensselaer county. Plaintiff was the owner in fee of 234 acres of land, upon which were two mortgages held by the State; he had also a written contract for the purchase of fifty-two acres adjoining, for the consideration of $1,500, upon which he had paid over $1,000. Defendant, Ketehum, held a judgment against him for $1,545.25. Plaintiff, not being able to complete his payments on the fifty-two acres, made a parol agreement with Ketehum, by which Ketehum was to pay the balance of the purchase-money and take a deed in his own name. Plaintiff agreed to sell Ketchum 110 acres, which included a portion of the fifty-two acres; this was to be deeded when the incumbrances were removed. The amount of Ketchum’s judgment and the amount paid by him upon the fifty-two acres was to be applied as so much payment upon the 110 acres, the balance Ketchum was to secure by mortgage; upon receiving this deed, Ketchum was to convey to plaintiff all of the fifty-two acres not included in the 110 acres. Under this arrangement, Ketchum paid the balance of the purchase-money and received a deed of the fifty-two acres. Plaintiff did not succeed in getting a release of the State mortgages, and, after some delay, Ketchum notified him that “ their negotiations were at an end, and he would make war upon him and recover his money back.” There was another judgment against plaintiff, in favor of one Steers, for $503.72. This Ketchum purchased for $125, taking an assignment to his brother-in-law. Proceedings, supplementary to execution, were commenced thereon, a receiver appointed, who sold plaintiff’s interest in the fifty-two acres at auction ; it was bid off by Ketchum for $100. At Ketchum’s request, and under his direetioti, the State mortgages were foreclosed; the premises were purchased by defendant, Davenport. A surplus arose upon the sale, which was ordered to be paid over to Ketchum upon the judgments; it was sufficient to pay in full the Steers judgment (no credit being given for the $100), and to pay a portion of Ketchum’s judgment. At the date of the foreclosure sale, it was agreed between Davenport and Ketchum, that if the former would become the purchaser the latter would convey the fifty-two acres and assign the two judgments to him for $3,000. In pursuance of this agreement, Ketchum conveyed the fifty-two acres and permitted Davenport to receive the surplus moneys. The referee found 'that at the time of this conveyance, Davenport did not know that plaintiff claimed any interest in the fifty-two aeres; and, as a conclusion of law, that having purchased in good faith without notice he had a valid title, and that-the complaint should be dismissed as to him, and gave judgment against Ketchum for $1,079.47, the assessed value of plaintiff’s interest in the fifty-two acres. Upon appeal by plaintiff the General Term, upon the facts, held that Davenport had notice and was not a bona fide purchaser, and that plaintiff in lieu of the judgment was entitled to redeem the fifty-two acres, upon payment of the sum advanced by Ketehum with interest, with sums paid for taxes and improvements, less the value of the use and occupation, and the judgment was modified accordingly. The court here coincided with the General Term that Davenport was not a bona fide purchaser, and upon the right to redeem held as follows: That the relations of plaintiff and Ketehum in regard to the fifty-two acres, were such that the duty was imposed upon the latter either to convey so much thereof as by the parol agreement he was to convey to the former upon his fulfilling his contract, or upon being repaid the amount paid by him to convey the whole; that the failure of plaintiff to keep his agreement did not relieve Ketehum entirely from his equitable duty, that he still held the lands with the obligation to convey upon being fully reimbursed; that he was simply an equitable mortgagee, and had no other rights or remedies than such as the law accords to mortgagees. (Carr v. Carr, 52 N. Y., 251.) That plaintiff’s right was not extinguished by Ketchum’s purchase at the receiver’s sale, as, having a duty to perform in reference to the property, he could not be permitted to acquire an interest inconsistent therewith. (Torrey v. Bank of Orleans, 9 Paige, 650; Colburn v. Morton, 3 Keyes, 296, and cases cited at page 305.) And that Ketchum’s notification that he intended to act thereafter in hostility to plaintiff, did not change his confidential relationship, as he could not put away, on his own motion, that relationship, and retain what he had got by it. E. F. Bullard for the appellant. Geo. C. Genet for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.