Bosworth v. Farenholz

Stockton, J. It is urged by defendant, as a fatal objection to plaintiff’s title and right to recover against her, that neither William Farenholz nor defendant, were made parties to the suit, brought by Yeager to foreclose the mortgage given by Bliss, June 18th, 1851. We do not see that the defendant is in a position to make this objection for William Farenholz. She does not connect herself in any manner with him, nor show any right to answer for him, except that she has in her possession the mortgage given by Henry tó William Farenholz, September 25, 1851. If by the production of this mortgage, it was intended to show an outstanding title in William Farenholz, in order to defeat plaintiff’s right to recover, it is well settled that such outstanding title, must be a legal title, better than the plaintiff’s. In this instance, it will not be contended, that William Farenholz has any but an equitable title, if he had even that, after the proceedings in foreclosure. We are quite as far from being satisfied, that the defendant is in any better position than William Farenholz ; or that she can be permitted to object that she was not made a party to the foreclosure suit. She claims under a deed of ■conveyance from Henry Farenholz, which purports to convey to her forty feet of lot No. 2, in block No. 2, in Davenport. Does this give her any title to the premises in controversy? We think not. The description is fatally defective, and does not convey to her any interest. In Worthington v. Hilyer, 4 Mass. 205, Parsons, C. J., says: “ If the description in a conveyance be so uncertain, that it cannot be known what estate was intended, the conveyance [88] / is void.” See also, Gault v. Woodbridge, 4 McLean, 329 v. Porkendorf v. Taylor's Lessee, 4 Peters, 349; Haven v. Crane, 1 N. H. 93; Ward v. Bartholomew, 6 Pick. 409 ; but if tbis deed was sufficient, and defendant could take under it all tbe interest of Henry Earenbolz at tbe date, it must be remembered that plaintiff derives title by virtue of tbe deed of trust to J. P. Cook, of older date than defendant’s conveyance from Henry Earenbolz. Tbe objections made to the deed of trust to Cook, are altogether to tbe operation of tbe deed, as a valid execution of tbe power reserved in the mortgage to William Earenbolz. The objections, if tenable, can only have tbe effect to postpone tbe title acquired under it, to any that might be acquired under the mortgage to William Earenholz, in which tbe power is reserved. It is still good as a conveyance of Henry Earenbolz’s interest in tbe premises at tbe date of tbe deed, and being of an older date than tbe defendant’s deed, tbe plaintiff’s title under it, is superior to that of defendant. It is, therefore, unnecessary for us to notice tbe other questions raised by defendant. Tbe plaintiff, in our judgment, has shown a valid subsisting interest in tbe premises, in disjDute, and a right to tbe immediate possession. The defendant is in possession without title, and her possession must yield to tbe superior right of plaintiffs. Judgment affirmed.