Summary
In Graish v. Kessler, 256 N.Y. 477, 177 N.E. 10, wherein the facts are quite similar to the facts here, it was held that in a suit to set aside deeds of defendant purchaser as clouds on plaintiff's title, the defendant having in good faith and for value obtained the deeds, was entitled to reimbursement or an equitable lien for the sums expended in paying the taxes on the property in excess of the rental value.
Summary of this case from Hollywood, Inc., v. ClarkOpinion
Argued May 22, 1931
Decided June 2, 1931
Appeal from the Supreme Court, Appellate Division, Second Department.
W.L. Crawford and William A. Bacher for appellant.
Odin Gustafson and Joseph J. Shapiro for respondent.
The preponderance of evidence sustains the finding of the Appellate Division that the deeds recorded in 1904 from Weeks to Medary and from Weeks to Barney, were forgeries and void.
The defendant, who received a conveyance in 1913, was a purchaser for value and in good faith. The plaintiff seeks the aid of equity, and must submit to the condition that he do equity himself. There must be reimbursement to the defendant for any moneys expended by her in the discharge of assessments for improvements ( Thomas v. Evans, 105 N.Y. 601, 612, 613; Mickles v. Dillaye, 17 N.Y. 80, 86; Satterlee v. Kobbe, 173 N.Y. 91, 99). The effect of such payments is an equivalent enhancement of the value of the land. If the assessments had not been paid by the defendant, the plaintiff would have had to pay them, or to leave them as liens upon the land with a proportionate reduction of the value of the equity ( Loos v. Wilkinson, 113 N.Y. 485, 499; Title G. T. Co. v. Haven, 214 N.Y. 468; Frank v. Van Bayer, 236 N.Y. 473). There must also be reimbursement for the annual taxes except to such extent as taxes are offset by the reasonable value of the use and occupation ( Thomas v. Evans, supra; Loos v. Wilkinson, supra).
The judgment of the Appellate Division should be modified by requiring the plaintiff to reimburse the defendant for the moneys expended by her in discharge of assessments for improvements, and also for the annual taxes in excess of rental value; by remitting the case to the trial court to ascertain and determine how much is due to the defendant by force of the condition thus imposed, and to impress the amount so found to be due as a lien upon the land; and as thus modified the judgment should be affirmed without costs.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgment accordingly.