McLennan, J.:
There is very little conflict as to the facts. In any event, the findings of fact by the referee must be regarded as conclusive, there being evidence to support the same, and, therefore, only such of them need be stated as are necessary to present the questions of law involved.
Prior to the 31st day of July, 1884, one Van Dresser was the owner of a hotel and a vacant lot adjoining in the village of Hume,, N. Y. On that day, by an instrument in writing, he leased the- . vacant lot to R. D. Sweet and N. P. Baker for the term of fifteen years. No rent was reserved, but the lease contained the following: “ Said second parties agree that they will, during said term, maintain on said premises a skating rink or public hall, for which purpose alone these premises are leased, which building and fixtures [386]*386thereto belonging, second parties may remove at the end of their term.”
The lease was never recorded. Sweet and Baker entered into possession of the lot immediately, and erected a substantial structure, for a .skating rink thereon. The main building ¿rected was about one hundred feet long and thirty-eight feet wide, and there was a lean-to sixty-one feet long and ten feet wide. All was set upon substantial stone abutments, fifty-two in number, except one end,, which rested upon the bed rock, an excavation having been made for that purpose. When completed it had all the appearance of a permanent structure, and there was nothing to indicate that it was hot or was not intended to be a part of the realty.
After the building had been thus constructed and was being used by Sweet and Baker as a skating rink, and on the 1st day of May, 1885, Van Dresser, the owner of the fee of the hotel and premises in question, conveyed the same to one Crandall by deed bearing date that day. Said 'deed contained the reservation above quoted, to wit: “ Also excepting and reserving the use of the land on which a certain skating rink now stands, for the usé of said rink, for the term of fifteen years from the year 1884.” " .
Crandall on the same day gave back a mortgage to Van Dresser to secure $2,200, being a part of the purchase price of the property. The mortgage contained the reservation above quoted, which appeared in the deed, and in exactly the same language. The mortgage was assigned by Van Dresser to one Relief Sweet September 10, 1885, and by her assigned to John Dunn March 6, 1886.
May 1, 1886, Crandall conveyed the hotel and premises in question to the defendant Augustus W. Henry by deed dated that day, "which also contained the clause above quoted.
In June, 1886, the defendant Augustus W. Henry, then being the owner in fee of the hotel and of the lot in question, took assignments from Sweet and Baker of the lease made by Van Dresser to them, and of all their right, title and interest in and to the skating rink. Neither of such assignments was recorded.
Thereafter, commencing in 1889, the defendant Augustus W. Henry made extensive and valuable improvements to the skating rink building; converted it into an opera house; put in' a gallery and stage ; ceiled it with natural wood ; in all, expended upon it [387]*387about $1,500, and said opera house was used by Henry in conjunction with or as an adjunct to his' hotel for ten or twelve years thereafter.
In June, 1897, an action was commenced to. foreclose the purchase-money mortgage given to Van Dresser by Crandall, and which had been assigned to Dunn, and the action proceeded to judgment in the ordinary way, the description in the complaint, in the Us pendens and judgment all containing the exception and reservation contained in the mortgage and in all the conveyances above referred to. The sale of the premises under the decree of foreclosure took place March 18, 1898, and the plaintiff in that action, Nellie Dunn, who was the executrix of John Dunn, bid in the property, and thereupon a deed of the same was executed and delivered to her, which also contained the exception and reservation above referred to.
Thereafter, and on the 28th day of April, 1898, Nellie Dunn conveyed the property to one Howden by deed also containing such exception, and on the day following Howden entered into an executory contract of sale of the premises with the plaintiff, which were described by reference to the deed to Howden. The plaintiff immediately went into the actual possession of the hotel under said contract, and the defendant Augustus W. Henry removed from the hotel into the skating rink building, and continued to occupy the same until the commencement of this action, as is claimed, in virtue of his own right or through that of the defendant Hetty Henry, to whom through his mother he executed a bill of sale of “ a skating rink * * * and fixtures thereto belonging ” as hereinafter stated.
It will be observed that-until immediately prior to the time when the plaintiff became the vendee of the premises in question by virtue of his contract with Howden, and until the foreclosure and sale of the premises under the Dunn mortgage, the ' defendant Augustus W. Henry was the owner of the fee of the premises in question, as well as of the lease made by Van Dresser to Sweet and Baker.
A few days after the foreclosure action was commenced Augustus W. Henry, who was financially embarrassed, assumed to execute a bill of sale of the opera house and furniture therein to his mother, Rosetta Henry, and on the 29th day of March, 1898, the day after the plaintiff entered into the contract with Howden for the pur[388]*388chase of the property, Rosetta Henry assumed to assign, and transfer said bill of sale to the defendant Hetty Henry. Shortly before, and at the time of the commencement of this action, the defendant Hetty. Henry claimed to own the opera- house and skating rink Building.in'question, and-with the assistance of the defendants Augustus W. Henry .and Joseph W. Ayre attempted to remove the sanie from the premises. This action was brought to restrain them. fcom so'doing. *
The learned referee found, as conclusion of law, that the lease to Sweet and Baker merged and was extinguished in the fee, because Gf the fact that the defendant Augustus W. Henry became and for years continued to be the owner of the fee and also of said lease but he found that the opera house or skating rink remained personal property,-and that the plaintiff was estopped by.the recitals in the' deeds, mortgages, foreclosure proceedings, etc.,, from asserting that gaid building became part of the real estate. He also found that it was not the intention of Augustus W. Henry at any time that the building should become a part of the realty, and that the defendant Hetty Henry was the owner of it and had the right to remove it, . and for that reason the complaint was dismissed upon the merits as aboye stated, and judgment was entered accordingly.
In none of the deeds, mortgages, assignments, foreclosure proceedings, or-in the,-contract for . the purchase: of the property made between the -plaintiff and Howden, his’vendee, all of which were duly recorded, is there any reference to the lease made by Van Dresser to Sweet and Baker under which the defendant claims, and no reference is made in any manner to that clause of the lease which gives to said lessees or their assigns the right to remove the skating rink from the land on which it stands; those instruments simply contain the clause quoted,, which reserves the use of the land on which the skating rink stands for the term of fifteen years from 1884.
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McLennan, J.:
There is very little conflict as to the facts. In any event, the findings of fact by the referee must be regarded as conclusive, there being evidence to support the same, and, therefore, only such of them need be stated as are necessary to present the questions of law involved.
Prior to the 31st day of July, 1884, one Van Dresser was the owner of a hotel and a vacant lot adjoining in the village of Hume,, N. Y. On that day, by an instrument in writing, he leased the- . vacant lot to R. D. Sweet and N. P. Baker for the term of fifteen years. No rent was reserved, but the lease contained the following: “ Said second parties agree that they will, during said term, maintain on said premises a skating rink or public hall, for which purpose alone these premises are leased, which building and fixtures [386]*386thereto belonging, second parties may remove at the end of their term.”
The lease was never recorded. Sweet and Baker entered into possession of the lot immediately, and erected a substantial structure, for a .skating rink thereon. The main building ¿rected was about one hundred feet long and thirty-eight feet wide, and there was a lean-to sixty-one feet long and ten feet wide. All was set upon substantial stone abutments, fifty-two in number, except one end,, which rested upon the bed rock, an excavation having been made for that purpose. When completed it had all the appearance of a permanent structure, and there was nothing to indicate that it was hot or was not intended to be a part of the realty.
After the building had been thus constructed and was being used by Sweet and Baker as a skating rink, and on the 1st day of May, 1885, Van Dresser, the owner of the fee of the hotel and premises in question, conveyed the same to one Crandall by deed bearing date that day. Said 'deed contained the reservation above quoted, to wit: “ Also excepting and reserving the use of the land on which a certain skating rink now stands, for the usé of said rink, for the term of fifteen years from the year 1884.” " .
Crandall on the same day gave back a mortgage to Van Dresser to secure $2,200, being a part of the purchase price of the property. The mortgage contained the reservation above quoted, which appeared in the deed, and in exactly the same language. The mortgage was assigned by Van Dresser to one Relief Sweet September 10, 1885, and by her assigned to John Dunn March 6, 1886.
May 1, 1886, Crandall conveyed the hotel and premises in question to the defendant Augustus W. Henry by deed dated that day, "which also contained the clause above quoted.
In June, 1886, the defendant Augustus W. Henry, then being the owner in fee of the hotel and of the lot in question, took assignments from Sweet and Baker of the lease made by Van Dresser to them, and of all their right, title and interest in and to the skating rink. Neither of such assignments was recorded.
Thereafter, commencing in 1889, the defendant Augustus W. Henry made extensive and valuable improvements to the skating rink building; converted it into an opera house; put in' a gallery and stage ; ceiled it with natural wood ; in all, expended upon it [387]*387about $1,500, and said opera house was used by Henry in conjunction with or as an adjunct to his' hotel for ten or twelve years thereafter.
In June, 1897, an action was commenced to. foreclose the purchase-money mortgage given to Van Dresser by Crandall, and which had been assigned to Dunn, and the action proceeded to judgment in the ordinary way, the description in the complaint, in the Us pendens and judgment all containing the exception and reservation contained in the mortgage and in all the conveyances above referred to. The sale of the premises under the decree of foreclosure took place March 18, 1898, and the plaintiff in that action, Nellie Dunn, who was the executrix of John Dunn, bid in the property, and thereupon a deed of the same was executed and delivered to her, which also contained the exception and reservation above referred to.
Thereafter, and on the 28th day of April, 1898, Nellie Dunn conveyed the property to one Howden by deed also containing such exception, and on the day following Howden entered into an executory contract of sale of the premises with the plaintiff, which were described by reference to the deed to Howden. The plaintiff immediately went into the actual possession of the hotel under said contract, and the defendant Augustus W. Henry removed from the hotel into the skating rink building, and continued to occupy the same until the commencement of this action, as is claimed, in virtue of his own right or through that of the defendant Hetty Henry, to whom through his mother he executed a bill of sale of “ a skating rink * * * and fixtures thereto belonging ” as hereinafter stated.
It will be observed that-until immediately prior to the time when the plaintiff became the vendee of the premises in question by virtue of his contract with Howden, and until the foreclosure and sale of the premises under the Dunn mortgage, the ' defendant Augustus W. Henry was the owner of the fee of the premises in question, as well as of the lease made by Van Dresser to Sweet and Baker.
A few days after the foreclosure action was commenced Augustus W. Henry, who was financially embarrassed, assumed to execute a bill of sale of the opera house and furniture therein to his mother, Rosetta Henry, and on the 29th day of March, 1898, the day after the plaintiff entered into the contract with Howden for the pur[388]*388chase of the property, Rosetta Henry assumed to assign, and transfer said bill of sale to the defendant Hetty Henry. Shortly before, and at the time of the commencement of this action, the defendant Hetty. Henry claimed to own the opera- house and skating rink Building.in'question, and-with the assistance of the defendants Augustus W. Henry .and Joseph W. Ayre attempted to remove the sanie from the premises. This action was brought to restrain them. fcom so'doing. *
The learned referee found, as conclusion of law, that the lease to Sweet and Baker merged and was extinguished in the fee, because Gf the fact that the defendant Augustus W. Henry became and for years continued to be the owner of the fee and also of said lease but he found that the opera house or skating rink remained personal property,-and that the plaintiff was estopped by.the recitals in the' deeds, mortgages, foreclosure proceedings, etc.,, from asserting that gaid building became part of the real estate. He also found that it was not the intention of Augustus W. Henry at any time that the building should become a part of the realty, and that the defendant Hetty Henry was the owner of it and had the right to remove it, . and for that reason the complaint was dismissed upon the merits as aboye stated, and judgment was entered accordingly.
In none of the deeds, mortgages, assignments, foreclosure proceedings, or-in the,-contract for . the purchase: of the property made between the -plaintiff and Howden, his’vendee, all of which were duly recorded, is there any reference to the lease made by Van Dresser to Sweet and Baker under which the defendant claims, and no reference is made in any manner to that clause of the lease which gives to said lessees or their assigns the right to remove the skating rink from the land on which it stands; those instruments simply contain the clause quoted,, which reserves the use of the land on which the skating rink stands for the term of fifteen years from 1884. There is no evidence tending to- show that the plaintiff, prior to purchasing the premises in question from Howden, knew -that the defendant Augustus W. Henry was or claimed to be in possession of the skating rink under the lease which he purchased from Sweet and Baker. Such lease or the assignment thereof were not recorded. The plaintiff did know, especially if he examined the record title — which he is presumed to.have done — before he [389]*389purchased the premises in question, that the defendant Henry was the owner of the fee of the premises at the time he purchased, and continuously for ten years prior thereto; and, so far as appears, the plaintiff had no information that he, Henry, was not in possession of the premises as owner of such fee. Nothing appears which could have led the plaintiff to suppose that Henry was occupying under some lesser title, when he was the owner of the fee or paramount title. '
We think the exception or reservation contained in the deeds and conveyances referred to cannot in any sense be held to constitute such notice to the plaintiff, or that they are sufficient even to have put him upon inquiry. The clause referred to in" his contract and the record title preceding it at most only informed him that he was not entitled to the use of the land on which the skating rink stood, for the term of fifteen years from the year 1884; that said land was reserved for the use of such rink for said term. The defendant Henry was in possession of the hotel; was in possession of the skating rink and the land on which it stood at the time of plaintiff’s purchase, as the owner of the fee, and it was not incumbent, upon the plaintiff to inquire whether he claimed to be in possession by virtue of some lesser title, to wit, a lease which it was not intended should merge in the greater title, but of which intention the plaintiff was in no manner informed.
The rights of the defendant Hetty Henry must be precisely as would those of Augustus W. Henry in case he had continued to be the. owner of the lease in question. It cannot be that a person may be the owner of the-fee of real property and in possession, and because he is also the owner of a lease of the same premises, made to another party before he purchased the fee, a bona fide purchaser of such premises is bound to inquire as to the rights of such owner because of his alleged possession under such lease, when as owner of the fee he was entitled to full possession and enjoyment of the premises. We may assume that if Sweet and Baker had continued to be the owners of the lease and had remained in possession of the skating rink, the plaintiff would have been under the obligation of ascertaining the nature of such possession, the contents of the lease, and that his purchase of the premises would have been subject to all the rights which Sweet and Baker had under such lease, notwith[390]*390standing the instrument was not recorded; but we think it cannot be said that the defendant Henry, being the owner of the fee and in possession, of the whole property, the plaintiff was bound to. ascertain at his peril whether he claimed to be in. such possession by virtue of such ownership, or in virtue of some lease of inferior title.
It is unnecessary to discuss or determine whether or not when the defendant Henry obtained the lease it merged in the fee which he owned, or as to whether or not the terms of the lease were sufficient to make the building in question personal property. As we have seen, the structure had all the appearance of being.part of the realty. There was nothing about it to indicate that it was not. Under those circumstance we are of the opinion that the plaintiff, being a purchaser in good faith, without knowledge of the defendant’s intention that the building.should be personal property, and without knowledge that the defendant claimed to occupy the building as lessee rather than as owner, was justified in assuming that, the building was a part of the realty; that the fact that the defend, ant was in possession did not require the plaintiff to ascertain the nature of such possession, and to know that the defendant was not in such possession by virtue of being the owner of the fee of the premises, but by virtue of a lease.
The rule of law applicable to this state of facts may be. stated as follows : "Where the owner of the fee of certain lands is in possession of a part as such owner, and afterwards becomes the owner of an outstanding unrecorded lease of the balance, and entitled to and immediately enters into possession of it, a purchaser of such premises from a vendee at a foreclosure sale of. the same is not bound to ascertain the nature and terms of such lease. Any right of removal of the buildings upon such premises, which to all appearance are a part of the realty given by such lease, is extin güished as.against such purchaser for value, in the absence of knowledge on his part as to such right. Such purchaser is not bound, at his peril, to ascertain the conditions of such lease, because of the fact that the owner of the lease who is also the owner of the fee is in possession of the premises.
In the case at bar, as we have seen, the exception and reservation contained in the deed to plaintiff’s grantor, and which was in sub[391]*391stance incorporated into his contract, cannot be construed to- be notice to the plaintiff that the defendant had the right to remove the buildings in question at the expiration of the term of the lease. Such clause simply reserved for the plaintiff the use of the land on which the building stood, for the, use of such building, until the end of the term. It in no manner informed him that the defendant or any one else had or claimed to have the right to remove a part of the realty which he had purchased.
It follows that the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.
Adams, P. J., and Hiscock, J., concurred; Spring and Williams, JJ., dissented.