On the 6th day of May, 1884, the premises in question were conveyed by warranty deed by Philander Baker and Lenora Baker to Elizabeth B. Maeder this defendant.

The deed contained a provision that "the only consideration of this conveyance is the love of the parties for each other, and the fact that Elizabeth B. Maeder does hereby agree to faithfully support and care for the parties of the first part, in sickness and in health, according to their condition in life, during their natural lives, and the life of the survivor of them."

C. G. S. Edwards died in 1863, and by his will, which was proved and recorded, devised and bequeathed all his estate, real, personal and mixed, to his wife, Jerusha B. Edwards, under which she claims to make title to the lease or contract sought to be foreclosed as a lien in this action.

The trial judge submitted to the jury two questions:

First. Was the lease or agreement in question paid up, or has any payment been made on the same?

Second. Did the defendant, Elizabeth B. Maeder, purchase the premises mentioned in the lease in good faith, without notice of the lease or agreement, and for value?

To the first question the jury found that some portion of the lease had been paid.

To the second the jury found in the affirmative.

The case was thereupon reserved by the judge for further consideration, who finally held that the defendant was a purchaser of the premises in good faith, and for value, and without notice of the lien or agreement in suit; and directed judgment for the defendant, dismissing the complaint, and that her title to said premises be declared free and clear from such incumbrance or lien.

The court having found upon the evidence that the amount called for by the agreement had not been paid in full, but that the plaintiff had no actual notice of the agreement at the time of her purchase, the legal questions seem to be:

First. Was the recording of the lease constructive notice to the defendant of the existence of this lien?

Second. Was the recital in the deed to Lenora Baker of the existence of a claim in favor of Fred. S. Baker notice to her sufficient to charge the land in her hands or as a covenant running with the same?

It does not seem to be strenuously insisted that the record of the lease amounts to legal notice under the recording statutes, so as to constitute constructive notice to defendant of the existence of this claim.

No case is cited on the part of the plaintiff establishing that proposition, and we do not see how it can be held that the recording of this agreement or lease in a book of leases is in any sense a compliance with the recording act.

The Revised Statutes provide, 3 R. S., 7th ed., Banks & Bro., 2216, 2, that each county clerk shall provide. two sets of books, one for deeds, in which all conveyances shall be recorded, and one for mortgages, in which all mortgages and securities in the nature of mortgages shall be recorded.

The recording of this lease or contract was not in conformity with the provisions of the statute, and is not therefore notice to to subsequent purchasers or incumbrancers. Gillig v. Maass, 28 N. Y., 212; Purdy v. Huntington, 42 id., 343, and cases cited. To make the recording of a conveyance or incumbrance constructive notice, the record, to be effectual, must be made according to law. Ins. Co. v. White, 17 N. Y., 475.

Nor do we see how the contract can be treated as a covenant running with the land. There was no privity of estate in the land as between David Baker and Frederick S. Baker.

The original title was in David. Frederick had no title or claim of title. His only possible interest was a lien in the nature of an unrecorded mortgage.

The agreement to pay that out of the rents of this real estate was not like a lease by the owner of the fee to a tenant whose covenant to pay rent would run with the land against whomever succeeded to his possession and estate.

No such relation existed between David and Frederick.

The most that can be claimed was: David owed Frederick, and gave him this lease in the nature of a security, but in doing this did not part with his title in fee to the land.

Frederick failed to record it as a mortgage, as did plaintiff's

testator.

David conveyed to Lenora, subject to this unrecorded mortgage or lien.

Lenora and her husband, Philander, conveyed to the defendant by deed, with covenants of warranty, for a valuable consideration, the fee, the defendant being a purchaser in good faith without notice or knowledge of this claim or incumbrance.

The agreement sought to be foreclosed was not a covenant running with the land. 2 Washburn on Real Property, 295-296; Cole v. Hughes, 54 N. Y., 444.

The most that can be claimed for the contract sought to be enforced as a lien is that it was in the nature of a mortgage, of the existence of which the defendant had no notice or knowledge, and that as to her, standing in the relation of a bona fide purchaser for value, it is inoperative and void.

The consideration for the deed was valid and sufficient to pass the title, and the grantee was bound by the agreement to maintain the grantors. Spaulding v. Hallenbeck, 35 N. Y., 206; affirming same case, 30 Barb., 292.

There was no error in the receipt of evidence, or misdirection of the trial judge, for which this judgment should be reversed. Judgment affirmed, with costs.

LEARNED, P. J.-May 17, 1834, one Kent conveyed the ises in question to Philander Baker and David Baker.

prem

December 5, 1867, David Baker, one Edwards, now deceased, and F. S. Baker, entered into a scaled agreement, stating that F. S. Baker had had an interest in the premises (known as the Phi. Baker place), of $650, which he had transferred to Edwards and agreeing that Edwards should receive that sum with interest from

David Baker, which sum should be a lien on the property. The plaintiff holds that claim and seeks to enforce it in this action. The agreement was not recorded as a mortgage.

July 20, 1868, David Baker quit-claimed the premises to Lenora Baker. The deed recites that the premises are subject to a mortgage to one Cottrell, and, also, "to a claim which Frederick Baker had against the premises for money laid out upon the house on said premises to the amount of $572.55," and states that the rent is to be paid to said Frederick S. Baker until the amount is paid.

July 20, 1868, David Baker executed a mortgage to Frederick S. Baker of the premises (subject to the Cottrell mortgage), for $572.50, described to be for advances and repairs on the building and money to keep same insured. The mortgage states that the rent is to be paid over to said Frederick S. Baker.

May 6, 1884 (probably this should be December 6, 1884), Philander Baker and Lenora Baker conveyed the premises to defendant Maeder in consideration of love, and, also, of her agreement to support the parties of the first part during their lives and the life of the survivor.

The principal question of law is whether the defendant Maeder had notice of the agreement of December 6, 1867, by reason of the language used in the deed of July 20, 1868. The plaintiff claims that the language of the deed of July 20, 1868, referred to the Edwards agreement of December 5, 1867. The defendant insists that it referred to the mortgage of even date given by David Baker to Frederick S. Baker.

Now it will be seen that the alleged claim belonged, in 1867, to Edwards, and there is no evidence that it had been subsequently transferred to Frederick S. Baker. That claim was for $650. The deed of July 20, 1868, describes a claim which Frederick Baker then had against the premises. Edwards was then dead, and the claim which had belonged to him had, if valid, passed to the present plaintiff. Further, the deed specifies the amount of the claim as $572.50 (or $572.55), which is the exact amount of the mortgage executed on the same day to Frederick S. Baker. And the same clause about the rent of the premises is found in the deed and in the mortgage. Assuming then that the contents of the deed of David Baker to Lenora Baker were presumed to be known to defendant Maeder, grantee of Lenora, it seems to us that she was not thereby chargeable with notice of another claim held by another person, when the existing mortgage to Frederick S. Baker corresponded with the recitals of the deed.

It is to be observed that the complaint is only for the foreclo sure of the lien alleged to exist by virtue of the agreement with Eiwards, dated December 5, 1867.

It is not a foreclosure of the mortgage to Frederick S. Baker. The question of actual notice of defendant Macder was disposed of by the jury and the trial judge.

The plaintiffs further allege that the conveyance by Lenora and Philander was for their own benefit, and therefore void as against N. Y. STATE REP., VOL. XXXIII.

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their creditors. No allegations are made in the complaint on which this issue could be tried. Again it does not appear that there was any personal indebtedness of any one except, perhaps, David Baker, who did agree to pay the amount to Edwards. Philander, the co-tenant, does not seem to have bound himself, and Lenora only took a quit-claim deed which imposed no personal obligation on her.

I concur, therefore, with the opinion of my brother Mayham. ANDON, J., concurs.

AARON R. STEVENS et al., App'lts, v. THE UNION TRUST Co. et al., Resp'ts.

(Supreme Court, General Term, Third Department, Filed September 25, 1890.) 1. FRAUD-RAILROAD FORECLOSURE-RESALE.

The L. S. R. R. Co. was mortgaged in 1867 to the U. T. Co. to secure $2,000,000 worth of bonds, some of which plaintiff owns. In 1870 it was consolidated with a Vermont R. R., a connecting line, under the name of the H. E. R. R. Co., and about the same time the H. E. R. R. Co. issued bonds to the amount of $1,500,000, secured by a mortgage to the U. T. Co., and of these bonds plaintiff owns some. In February, 1872, for nonpayment of interest, the U. T. Co. began a foreclosure of both mortgages in New York state and brought a similar action in Vermont. In December, 1872, the H. E. R. R. Co. was consolidated with various railroads under the name of the N. Y., B. & M. R. R. Co. In the same month the U. T. Co. had judgment of foreclosure in New York and in Vermont in the actions above-mentioned. In January, 1873, sales were had. In New York one Duncan bid off the property ostensibly for the bondholders, paying nothing but the costs; a deed was given to his clerk, one Hull; in Vermont one Park bid off the property in the same manner and a deed was given to Park's clerk, one Lincoln. Two days later Hull and Lincoln delivered to Park and Duncan their bond for $5,000,000 and their mortgage on the L. S. R. R. to secure it. In the meantime Park and Duncan had been organizing the N. Y., B. & M. R. R. Co. above-mentioned, and to this latter corporation Hull and Lincoln, at the request of Park and Duncan, conveyed the L S. R. R. Co. for five dollars, subject to the $5,000,000 mortgage. The N. Y., B. & M. R. R. Co. then proposed to give a $25,000,000 mortgage and issue bonds, and out of this was to provide for the payment of the $5,000,000 upon the L. S. R. R. Co. The N. Y., B. & M. R. R. Co. sold in France bonds for $6,000,000, and out of this paid Park and Duncan $807,000, but the latter never paid any part of this to the bondholders of the L. S. R. R. Co. or of the H. E. R. R. Co. The N. Y., B. & M. Co. became hopelessly insolvent and never took possession of the L. S. R. R. Co., but leased it to the Central Vermont R. R., which latter road abandoned it in 1877. One Root took possession of it without right and ran it for some time, and until in October, 1880, it was taken possession of by V., a receiver. This receiver was appointed in an action brought for a sale of the road by one Sackett in conjunction with one Tilden, in behalf of himself and all others similarly situated who hold any of $2,000, 00 bonds of the L. S. R. R. Co. and who shall be entitled to avail themselves of the benefit of this suit." In Sackett's action the only parties were Root, a coal corporation which he had organized, the N. Y., B. & M. R. R. Co. and its receiver. Certain bondholders and also Park and Duncan were refused by the court permission to come into this suit. Pending the action, Tilden and Sackett were paid by order of the court by the receiver large claims, which in equity were not entitled to payment before the bondholders. Large sums were paid counsel and the receiver. The receiver was allowed to issue $350,000 of certificates, which were negotiated at a loss of one-third. Finally the road was ordered sold to pay the interest on receiver's certificat s and other debts, and the purchase price was entirely exhausted by such expenses. In an action brought by a bondholder to procure a resale under the judgments of foreclosure of the U. T. Co., and as a bill of review in the Sackett, action alleging that action

to be fraudulent, Held, that this action could be maintained; that the action of Sackett was not representative in its character, but was a scheme of spoliation.

2. SAME-BILL OF REVIEW.

A bill of review impeaching an action and judgment for fraud brings up the fraudulent practices of the plaintiff or those suffered by him in the action whereby he wronged those he assumed to protect.

3. SAME-PARTIES.

The U. T. Co., as trustee for the bondholders and as owner of the foreclosure judgments, into which the bonds had been merged by the sale, was a necessary and proper party, and where the plaintiff assumes to sue in a representative capacity, he must sue those who ought to be sued. 4. SAME.

Park and Duncan, who held the $5,000,000 mortgage given by Hull and Lincoln, should have been parties, and also the N. Y., B. & M. bondholders.

APPEAL by the plaintiffs from a judgment entered upon the decision of the Rensselaer special term upon trial before the court, dismissing the complaint upon the merits as to the answering defendants, and from an order denying judgment against the defendants who had made default.

The action was brought by the plaintiff Stevens in behalf of himself and of others similarly situated, to procure the sale of the Lebanon Springs railroad under judgments of foreclosure and sale procured by the defendants, the Union Trust Company, in December, 1872, as trustee for the first mortgage bondholders of the Lebanon Springs Railroad Company's first mortgage bonds, and also as trustee for the bondholders of the Harlem Extension R. R. Company's mortgage bonds upon the same railroad. The Harlem Extension company being the subsequent owner of the same railroad. The plaintiff Stevens owns the Lebanon Springs bonds to the amount of $2,200, and the Harlem Extension bonds to the amount of $5,000. Other plaintiffs, during the pendency of this action, were allowed to come in who owned both classes of bonds.

The complaint is also in the nature of a bill of review of a judg ment obtained in an action somewhat similar to this brought by one Marvin Sackett against Russell C. Root and three others in 1880, the plaintiff in this action asking relief against that action and proceedings therein as fraudulent, and praying to foreclose all liens, real and apparent, upon the railroad, and to establish priority of liens against all the liens allowed and created in the Sackett suit.

The plaintiff makes parties defendant all persons who can claim under either the Sackett judgment or liens created since the foreclosure judgments. Answers were interposed by holders of receiver's certificates created in the Sackett suit, alleging that the plaintiffs are bound by that suit, and by the trustees of a mortgage for $12,250,000 issued by the New York, Boston & Montreal Railroad Company, and by Park and Duncan, as owners of a mortgage of $5,000,000.

The facts are sufficiently stated in the opinion.

E. W. Paige, for app'lts; Matthew Hale, Delos McCurdy and Robert Ludlow Fowler, for resp'ts.