Barber v. Rowe

Hinman, J.: The appellants advance four reasons why the judgment appealed from should be reversed. In each of these points it is argued that the complaint does not state a cause of action. It is urged, First, that there being no allegation in the complaint and no finding in the case that Truman Waller owned the farm in question in 1880 at the time of his death, the plaintiffs have failed to make out a cause of action; Second, that the complaint does not state a cause of action because it does not allege that said legacy, sought to be enforced against the real property herein, has not been paid; Third, that the complaint does not state a cause of action, because it does not allege that the mortgagee, William H. Rowe, or his successors in title to said premises, these defendants, had notice, at the time of the foreclosure of said Rowe mortgage, of the legacy under the will of Truman Waller, deceased; Fourth, that the complaint does not state a cause of action in favor of the plaintiff William W. Bowen. The order overruling the demurrers was not appealed from, nor does the notice of appeal from the judgment here under review specify that the appellants intend to review upon this appeal the [295] order overruling the demurrer. Therefore, this order cannot be reviewed upon this appeal. (Code Civ. Proc. §§ 1301, 1316.) However, on the trial the defendants again moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action and on the further ground that the plaintiff Bowen was not a proper party plaintiff, which were two of the grounds of the demurrer. This motion was denied. The denial of this motion was a ruling which could only be reviewed, if at all, on an appeal from the final judgment. (Reade v. Halpin, 180 App. Div. 157.) Although the order overruling the demurrers was not reviewed is it any the less conclusive? An appellate court will not review questions previously reviewed. (Seaward v. Davis, 148 App. Div. 805.) An order is as conclusive if not reviewed as if reviewed and affirmed. The ruling on the trial, denying the motion to dismiss the complaint on the grounds covered by the decision on the demurrer, ought not to indirectly permit a review of the order overruling the demurrer not appealed from. Since no appeal from the order overruling the demurrer has been taken directly or by specifying it in the notice of appeal herein, that order stands as the law of the case on all questions that might have been litigated. (Reese v. Smyth, 95 N. Y. 645; Brater v. Andrews, 74 Hun, 640; Matter of Tredwell, 85 App. Div. 570; Riggs v. Pursell, 74 N. Y. 370; Dwight v. St. John, 25 id. 203.) But the appellants cannot succeed even though the issues raised by them may be open to decision upon this appeal. The complaint should be liberally construed (Peterson v. Eighmie, 175 App. Div. 113), and so construed seems to allege Truman Waller’s title at the time of his death, and the appellants are not in a position to dispute the ownership of the farm by Waller at the time of his death as their title came to them under his will. Applying the rule of liberal construction, I am also of the opinion that the complaint sufficiently alleged non-payment, in that the fact of non-payment may be implied from the facts set forth by reasonable and fair intendment. Moreover, the findings are sufficient and are sustained by the evidence. So far as the necessity of alleging demand and refusal of the legal representatives of the estate of Truman Waller is concerned, I agree with the conclusion of Mr. Justice Van Kirk when he says: “No person is liable for the legacy. It is payable out of the farm. * * * The action may be maintained to enforce the lien without prior demand of payment from any person.” A reference to the will establishes beyond question that all of the testator’s personal estate was disposed of otherwise and that it was the intention of the testator, clearly expressed, to make this particular legacy a charge upon [296] the real estate in question. The commencement of the action was in itself sufficient demand. (Locklin v. Moore, 57 N. Y. 360; Ferris v. Spooner, 102 id. 10; Gillett v. Balcom, 6 Barb. 370.) The claim of the appellants that they and their predecessor in title, the purchaser at the foreclosure sale, took title as bona fide purchasers without notice of the lien of the legacy, cannot be sustained. The question is not determined by the mere failure to record the will in the county clerk’s office prior to such sale. The doctrine of the case of Jefferson v. Bangs (169 App. Div. 102), relied upon by the appellants, does not reach this case, because in that case as Mr. Justice Howard said: “ In the records which the statute required the defendant to search there was no sign or intimation of the existence of the plaintiff’s claim. The record in the county clerk’s office showed the title to be clear and perfect.” It was held that the mere probate and filing of the will in the surrogate’s office was not sufficient to give constructive notice. The mortgage foreclosed in that case was a purchase-money mortgage given by the testator himself, which mortgage was purchased by a life tenant under the will of said testator. This life tenant was the guardian in socage of his daughter to whom said testator had devised the fee, subject to the life estates. He purchased the property at a sale in foreclosure of said mortgage and by reason of the trust relation which he bore to his daughter it was held that the sale was voidable at her election. Many years later she sought to avoid this purchase by her guardian after he had conveyed the lands which finally came into the hands of bona fide purchasers for value who had no actual notice of the rights of the daughter and no constructive notice unless the probate and filing of the will in the surrogate’s office was sufficient to accomplish that purpose. The will, in that case, was no part of the chain of title relied upon by the purchasers of the property. Therein lies the distinction between the case of Jefferson v. Bangs and the case at bar. In this case the records which the statute required the defendant to search disclosed the existence of the legacy and that it was made a charge upon the premises purchased at the foreclosure sale. The mortgage in this case was not one given by the testator before his death but was given by his son while a devisee in possession under the will, which will was expressly referred to in the mortgage as the source of the mortgagor’s title. This reference to the will as a part of the chain of title was repeated in subsequent instruments of conveyance under which the appellants hold title. Thus this case comes under the well-settled doctrine that all deeds or wills referred to, upon which the title is based, must be [297] examined as to any facts they may contain. A failure so to do is at the purchaser’s peril for he is charged with constructive notice of their contents. (Williamson v. Brown, 15 N. Y. 354; Cambridge Valley Bank v. Delano, 48 id. 326; Acer v. Westcott, 46 id. 384; Wilson v. Van Epps, 38 Misc. Rep. 486; Whistler v. Cole, 81 id. 519; affd., 162 App. Div. 920; Bentley v. Gardner, 45 id. 216; Sweet v. Henry, 175 N. Y. 268.) Under these authorities William H. Rowe, to whom the mortgage was given and who purchased at the foreclosure sale had constructive notice of the provisions of the will of Truman Waller on which his title depended and which will was a part of his chain of title and also that of the appellants. The appellants are, therefore, not bona fide purchasers for value without notice of the rights of the plaintiffs. It was not necessary for the plaintiffs to allege that the defendants had notice and were not bona fide purchasers for value. That was a matter of defense. The complaint sufficiently set forth the necessary facts. Upon the question whether the complaint states a cause of action in favor of the plaintiff William W. Bowen as the sole surviving next of kin of Martha Bowen, there seems to be sufficient authority to sustain the proposition that he could maintain the action without the intervention of the administrator of his mother’s estate. (Hyde v. Stone, 7 Wend. 354; Segelken v. Meyer, 94 N. Y. 473, 481; Hennessy v. Patterson, 85 id. 91; Van Axte v. Fisher, 117 id. 401; Hunt v. Wickham, 197 App. Div. 800; Clowe v. Seavey, 208 N. Y. 496.) At the time of the testator’s death Martha Bowen who was then living, had a future contingent interest in this legacy which did not lapse at the time of her death in 1893 but which was descendible and vested in her son, William W. Bowen, as her sole next of kin at the time of the death of the annuitant, Marion Wilds, in 1919. The omission by the testator of any mention of Martha Bowen’s children is of no importance as it does not affect the descendible quality of the estate which she was bequeathed. (Hennessy v. Patterson, supra; Van Axte v. Fisher, supra; Clowe v. Seavey, supra; Hunt v. Wickham, supra; Real Prop. Law, § 59.) The judgment is affirmed, with costs. Judgment unanimously affirmed, with costs; Van Kirk, J.; not sitting.