People ex rel. Millard v. Chapin

47 N.Y. Sup. Ct. 386

• Court: New York Supreme Court
• Decided: May 15, 1886
• Status: Published

Opinion

Pratt, J.:

The sale by the comptroller was void, and his deed conveyed no title. The act of 1855 (chap. 4271 was passed to protect purchasers at such sales, and conveyances made since that act should be construed as if containing a covenant to refund to the grantee, his representatives' and assigns, in event of failure of title, the purchase-money with interest at seven per cent. The principal question to be considered is whether the deed from Yiele and wife to Osborn carried with it the right to receive and demand the money that had been paid to the comptroller on the purchase. The question is by no means free from difficult y, but' we think that under the decisions it must be held that the conveyance, failing to transfer the title to the land, vested in the grantee the right to recover the purchase-money from the comptroller. (Jackson v. Bowen, 7 Cow., 13; Robinson v. Ryan, 25 N. Y., 320; Klock v. Buell, 56 Barb., 398; Danforth v. Suydam, 4 N. Y., 66.)

The deed was recorded in the proper county and was notice of the rights of the grantee. The conveyance was also brought to the actual notice of the comptroller, who refunded to Osborn the purchase-money of one of the parcels conveyed. The alleged conveyance to Peck was not recorded, and if it was made, as alleged in the affidavit of Yiele, the Osborn title gained priority by virtue of the record.

It follows from these views that the order of the Special Term should be reversed and a mandamus granted, as prayed for in the petition.

DriaiAN, J., concurred; BaeNaed, P. J., not sitting.

Order refusing mcmdamus reversed and mcmdamus granted, with costs.