New York Law Review

Tag: real property

  • Farr v. Newman, 14 N.Y.2d 160 (1964): Imputation of Attorney’s Knowledge to Client Despite Dual Representation

    Farr v. Newman, 14 N.Y.2d 160 (1964)

    A principal is bound by the knowledge of their agent, even if the agent also represents the other party in the transaction, unless the agent is acting adversely to the principal and the third party is aware of the agent’s adverse actions.

    Summary

    Farr contracted to buy land from Newman. Hardy later bought the same land from Newman through an attorney who knew of Farr’s prior contract but believed it was unenforceable. Farr sued Hardy to enforce his contract. The court addressed whether Hardy was bound by his attorney’s knowledge of Farr’s prior claim, given that the attorney also represented Newman. The court held that Hardy was bound by his attorney’s knowledge because the attorney’s good faith belief in the unenforceability of Farr’s contract negated any argument of adverse interest or fraud, and the attorney was acting within the scope of his agency.

    Facts

    Farr entered into an agreement with the Newmans to purchase real property for $3,000. This agreement was not in recordable form. Subsequently, Hardy purchased the same property from the Newmans for $4,000. Hardy’s attorney was aware of Farr’s prior agreement. The attorney, although believing the agreement unenforceable, obtained this knowledge directly from Farr, who asserted his rights. The attorney did not disclose Farr’s claim to Hardy. Hardy then completed the purchase from the Newmans.

    Procedural History

    Farr sued Hardy to compel conveyance of the property upon payment of $3,000. The trial court initially held that the memorandum of agreement was insufficient under the Statute of Frauds, but the Appellate Division reversed this finding. The Appellate Division affirmed the trial court’s finding that the attorney acted in good faith. The case then reached the New York Court of Appeals.

    Issue(s)

    Whether defendant Hardy may avoid the effect of his attorney’s knowledge of plaintiff’s equity, and the consequent application of the familiar maxim that he who takes with notice of an equity takes subject to that equity, by proof that the attorney also represented the grantors, the Newmans, in the transaction through which Hardy acquired title.

    Holding

    Yes, Hardy is bound by his attorney’s knowledge, because the attorney’s good faith belief in the unenforceability of Farr’s contract precludes a finding that the attorney was acting against Hardy’s interest, and the attorney was acting within the scope of his agency.

    Court’s Reasoning

    The court emphasized that a principal is generally bound by the knowledge of their agent in matters within the scope of the agency, even if the information is not actually communicated to the principal. The court distinguished this case from situations where an agent is defrauding the principal or acting against their interest for the benefit of another. Here, the attorney, acting in good faith, made a judgment about the legal status of Farr’s claim. The court stated, “It is well-settled that the principal is bound by notice to or knowledge of his agent in all matters within the scope of his agency although in fact the information may never actually have been communicated to the principal.”

    The court rejected the argument that the attorney’s dual representation created a conflict of interest that should prevent imputation of knowledge, noting that this argument was raised for the first time on appeal. The court found that the attorney was employed to pass judgment on the state of the title by both parties, and his decision, even if debatable, could not be considered deceitful as a matter of law. The court explained that the attorney was held out as a proper person to whom notice of outstanding equities was to be given, and his receipt of such notice from plaintiff was within his authority.

    The court referenced the Restatement 2d of Agency, highlighting that notice given to an agent is binding on the principal, even if the agent acts adversely, unless the third party knows of the agent’s adverse purpose. The court noted that the relevant question is not about the presumption that an agent will communicate relevant matters, but about the substantive rule of equity requiring notice of outstanding equities. The court observed: “When a prospective purchaser of real estate engages an attorney as his agent in the negotiations, he clothes the attorney with the incidental authority to receive in his behalf notice of outstanding equities… If, under the circumstances known to him, the obvious consequence of the principal’s own conduct in employing the agent is that the public understand him to have given the agent certain powers, he gives the agent those powers.”

  • Hawthorne v. Hawthorne, 13 N.Y.2d 82 (1963): Division of Fire Insurance Proceeds for Tenants by the Entirety

    Hawthorne v. Hawthorne, 13 N.Y.2d 82 (1963)

    Proceeds from a fire insurance policy on real property owned by tenants by the entirety are considered personal property and are not subject to the inseverable quality of ownership associated with the real property itself, allowing for division of the proceeds.

    Summary

    The case concerns whether fire insurance proceeds for property owned by a husband and wife as tenants by the entirety should be divided at the request of one owner. The court held that the insurance proceeds, being personal property derived from a contract, are not subject to the same inseverable ownership as the real property. Thus, the proceeds can be divided. The court distinguished this situation from involuntary conversions like condemnation awards, where the substituted property retains the original ownership structure, because the insurance proceeds arose from a voluntary contract.

    Facts

    Plaintiff wife and defendant husband owned real property as tenants by the entirety.
    The property was insured under a standard fire insurance policy.
    The property was damaged by fire, and insurance proceeds were paid out.
    The wife sought to have the proceeds divided, while the husband argued they should be treated as held by the entirety.

    Procedural History

    The Special Term dismissed the wife’s complaint.
    The Appellate Division affirmed the dismissal.
    The wife appealed to the New York Court of Appeals.

    Issue(s)

    Whether the proceeds of a fire insurance policy insuring the interests of a husband and wife as tenants by the entirety are required to be divided at the demand of one owner, or whether they are impressed with the inseverable quality of ownership akin to the real property.

    Holding

    No, because the insurance proceeds are considered personal property derived from a contractual agreement, not an involuntary conversion of the real property itself.

    Court’s Reasoning

    The court reasoned that while the unity of person historically explained entireties in realty, it doesn’t dictate the relationship regarding insurance proceeds. Personal property cannot be held by the entirety.
    The court distinguished this case from condemnation cases where the award substitutes the real property and retains the original ownership structure. Here, the insurance proceeds stem from a personal contract, not an operation of law on the real property.
    “These proceeds have been paid pursuant to a personal contract of insurance entered into between these parties and the insurance company.”
    The court emphasized that the loss of the realty was involuntary, but the draft (insurance proceeds) was the product of a voluntary contractual act.
    The court cited Matter of Blumenthal, where a purchase-money bond and mortgage taken back by a husband and wife on the sale of real property held by them as tenants by the entirety were deemed to be held as tenants in common, not by the entirety. The court in Blumenthal stated, “Estates by entirety are peculiar to real estate. No such thing exists, except by analogy, as to personal property.”
    The court noted that applying the incidents of a tenancy by the entirety to personal property is only by analogy and that considerations of policy and common convenience support the division of the proceeds.
    The court stated: “Therefore, since it is only by analogy that the incidents of a tenancy by the entirety may apply to personal property (Matter of Albrecht, 136 N. Y. 91, supra), considerations of policy and common convenience reinforce the applicability of the reasoning of the Blumenthal case.”
    Therefore, the complaint stated a valid cause of action for the compulsory division of the insurance proceeds.

  • Hedges v. Federal Reserve Bank of New York, 239 N.Y. 269 (1925): Judgment Liens and the Use of Common Name Abbreviations

    239 N.Y. 269 (1925)

    A judgment docketed against a person using a commonly recognized diminutive of their legal first name (e.g., ‘Bess’ for ‘Elizabeth’) is a valid lien against the real property of that person.

    Summary

    This case addresses whether a judgment docketed under a commonly used diminutive of a person’s given name creates a valid lien on that person’s real property. A creditor obtained a judgment against “Bess Hedges.” The property was subsequently transferred, and the question became whether the judgment against “Bess Hedges” created a lien on the property formerly owned by Elizabeth Hedges. The New York Court of Appeals held that it did, reasoning that “Bess” is a commonly recognized diminutive of “Elizabeth,” and therefore, the judgment was properly docketed and created a valid lien. This decision clarifies the requirements for judgment liens and the use of commonly recognized name variations.

    Facts

    Mrs. Hedges, whose given name was Mary Elizabeth, conducted business as “Elizabeth” and “Bess Hedges,” preferring to drop the name “Mary.” A creditor obtained a judgment against “Bess Hedges,” and it was docketed under that name in Kings County. Appellants acquired title to Mrs. Hedges’ property through foreclosure of a mortgage predating the judgment, but the judgment creditor was not a party to the foreclosure. The appellants argued that the judgment against “Bess Hedges” did not constitute a valid lien on the property previously owned by Elizabeth Hedges.

    Procedural History

    The case originated in a lower court where it was determined that the judgment against “Bess Hedges” was a valid lien on the property. The appellate division affirmed this decision. The case then went to the New York Court of Appeals, which also affirmed the lower court’s decision.

    Issue(s)

    Whether a judgment docketed against “Bess Hedges” constitutes a valid lien on the real property of “Elizabeth Hedges.”

    Holding

    Yes, because “Bess” is a commonly recognized diminutive of “Elizabeth,” and therefore, the judgment docketed against “Bess Hedges” created a valid lien on the property of Elizabeth Hedges.

    Court’s Reasoning

    The Court of Appeals focused on whether “Bess Hedges” was legally equivalent to “Elizabeth Hedges” for the purpose of establishing a judgment lien. The court reviewed the history of judgment lien statutes in New York, noting that the purpose of requiring the debtor’s name on the docket was to ensure certainty in determining whether real property was encumbered. The court distinguished between nicknames or less commonly known abbreviations and diminutives that are widely recognized as equivalents of formal names.

    The court stated, “If two names are in original derivation the same, and are taken promiscuously to be the same in common use, though they differ in sound yet there is no variance.” The court found that “Bess” for “Elizabeth” fell into the category of names considered equivalents due to immemorial usage.

    Referencing numerous cases from other jurisdictions, the court acknowledged a split of authority on similar issues, but found the weight of authority supported its conclusion. The court reasoned that someone searching the records under “Hedges, Bess” would reasonably be expected to take notice when looking for liens against property owned by “Hedges, Elizabeth.” The court carefully limited its holding to the specific diminutive “Bess” for “Elizabeth,” leaving open the question of how other nicknames or abbreviations might be treated.

  • Murdock v. Gifford, 18 N.Y. 501 (1881): Fixtures and the Duty to Deliver Property as Contracted

    Murdock v. Gifford, 18 N.Y. 501 (1881)

    A vendor of real property must convey the property in substantially the same condition as it was when the agreement of sale was made; removal of fixtures constitutes a failure of performance, barring a legal claim for damages.

    Summary

    This case addresses whether a buyer was obligated to purchase property after the seller’s tenant removed fixtures between the contract signing and the closing date. The New York Court of Appeals held that the seller materially breached the contract by failing to deliver the property in the same condition as when the agreement was made. The buyer was justified in refusing to complete the purchase, and the seller (or their assignee) could not recover damages for the buyer’s failure to perform. The court reasoned that the buyer was entitled to receive the property with all fixtures intact and functioning as part of the real estate.

    Facts

    The vendor, Trask, agreed to sell stores to the defendant. At the time of the agreement, the property included gas piping, partitions, lead pipe, plumbing work, a water closet, and basins. These items were attached to the building and appeared to be part of the realty. The tenant, after the sales agreement but before conveyance, removed these fixtures, cutting pipes and dismantling partitions. The defendant then refused to take the property in its altered condition.

    Procedural History

    The vendor, Trask, assigned his right to damages (if any) to the plaintiff, Murdock. Murdock sued Gifford for breach of contract. The General Term affirmed the lower court’s decision in favor of the defendant, Gifford. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether the removal of fixtures from a property between the signing of a sales agreement and the closing date constitutes a breach of contract by the vendor, excusing the purchaser from their obligation to buy the property and precluding the vendor from claiming damages.

    Holding

    Yes, because the purchaser is entitled to receive the property in substantially the same condition it was in when the agreement was made, and the removal of fixtures constitutes a failure of performance by the vendor.

    Court’s Reasoning

    The court emphasized that the agreement to sell contained no reservations regarding the fixtures. “The defendant was entitled to the stores in the condition in which they were when bargained for, and his refusal to take them in an altered and inferior condition was not a breach of his contract.” The court acknowledged that in equity, the vendor might have been able to compel performance with a monetary adjustment for the removed fixtures. However, because the vendor (through the assignee) sought damages at law, strict compliance with the contract’s terms was required. The vendor’s failure to deliver the property in its original condition constituted a breach, thus barring the vendor’s (or assignee’s) claim for damages. The court distinguished between remedies at law (strict compliance) and remedies in equity (where compensation could potentially remedy the breach). Because the plaintiff sought legal damages, they had to show the vendor performed all conditions of the contract. Since the fixtures were removed, the vendor failed to perform.

  • Lacustrine Fertilizer Co. v. Lake Guano & Shell Fertilizer Co., 82 N.Y. 476 (1880): Recording Act and Constructive Severance of Land

    Lacustrine Fertilizer Co. v. Lake Guano & Shell Fertilizer Co., 82 N.Y. 476 (1880)

    An unrecorded conveyance of an interest in real estate, such as the right to remove marl, is void against a subsequent purchaser in good faith for valuable consideration, and the doctrine of constructive severance cannot be applied to defeat the rights of such purchasers under the recording act.

    Summary

    This case concerns a dispute over ownership of marl deposits. Torrey, the original landowner, excavated marl and deposited it on his land. He then sold the land to Spaulding, excepting the marl with a right to remove it within ten years. Torrey later conveyed the marl to Barnum, but this conveyance was unrecorded. Torrey reacquired the land and sold it to Evans, who had no actual notice of the Barnum conveyance. The court held that the unrecorded conveyance to Barnum was void against Evans, a subsequent good faith purchaser, and that the marl was real estate subject to the recording act, not personal property due to constructive severance.

    Facts

    Between 1851 and 1853, the State excavated marl from land owned by Torrey during canal construction. The marl was deposited on the banks of the cut. In 1865, Torrey conveyed the land to Spaulding, excepting the marl deposits with a ten-year right of removal. In 1866, Torrey conveyed the marl to Barnum. This conveyance was not recorded. Torrey reacquired the land in 1869 through foreclosure. In 1874, Torrey’s devisees conveyed the land to Evans. Evans had no actual notice of the conveyance to Barnum. The plaintiff, deriving title from Barnum, sued the defendant, who succeeded to Evans’s title, claiming ownership of the marl.

    Procedural History

    The Special Term dismissed the complaint, and this appeal followed to the Court of Appeals of New York. The Special Term originally dismissed the case arguing a legal action was needed to determine title before an equitable injunction could be issued. The Court of Appeals affirmed the judgment, though on different grounds, focusing on the application of the recording act.

    Issue(s)

    1. Whether the marl, after being excavated and deposited on the land, remained part of the real estate?
    2. Whether the conveyance of the marl from Torrey to Barnum was a conveyance of real estate within the meaning of the recording act?
    3. Whether Evans was a good faith purchaser for valuable consideration without notice of the prior unrecorded conveyance to Barnum?

    Holding

    1. Yes, the marl remained part of the real estate because it was incorporated into the soil and intended to remain permanently.
    2. Yes, the conveyance of the marl was a conveyance of an interest in real estate under the recording act because it involved the sale of a part of the soil.
    3. Yes, Evans was a good faith purchaser because he paid valuable consideration and had no constructive notice of Barnum’s unrecorded deed.

    Court’s Reasoning

    The court reasoned that the marl, once deposited on Torrey’s land, became part of the realty. The exception in Torrey’s deed to Spaulding was a reservation of an interest in the land, terminable after ten years. The subsequent conveyance to Barnum was a conveyance of an interest in real estate. Because the Barnum conveyance was unrecorded, it was void against Evans, a subsequent purchaser in good faith and for valuable consideration. The court rejected the argument that the marl became personal property through constructive severance, stating that such a theory would undermine the purpose of the recording act, which is to protect bona fide purchasers. The court emphasized that “the term ‘conveyance,’ as used in that act, ‘shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned; or by which the title to any real estate may be affected in law or equity.’” They distinguished growing crops from standing timber or marl deposits, noting the latter are interests in land and subject to the recording act. The court also noted that Evans’s status as a good faith purchaser protected subsequent grantees, regardless of their knowledge of the unrecorded conveyance, citing Wood v. Chapin. The court also noted the trial court could have refused to hear the equitable action until the legal title was settled in a pending replevin action. The court noted: “We think it must be a general rule that the owner of land cannot, by agreement between himself and another, make that which in its nature is land, personal property, as against a subsequent purchaser for value, without notice, there having been no actual severance of the subject of the agreement, when the subsequent grant was made, and we are also of opinion that, in the case supposed, the doctrine of constructive severance cannot be applied to defeat the rights of subsequent purchasers under the recording act.”

  • De Puy v. Strong, 37 N.Y. 372 (1867): Joinder of Tenants in Common in Ejectment Actions

    De Puy v. Strong, 37 N.Y. 372 (1867)

    Tenants in common must either bring separate actions for their respective shares of property or join together in a single action to recover the entire property; some, but not all, tenants in common cannot bring a joint action.

    Summary

    This case addresses whether some, but not all, tenants in common can maintain a joint action of ejectment. The court held that while tenants in common may bring separate actions or join in one action for the entire property, a joint action by some, but not all, is impermissible. The court reasoned that statutory provisions dictate either individual suits or a complete joinder to avoid splitting claims and potentially harassing the defendant with multiple actions. This decision clarifies the procedural requirements for ejectment actions involving tenants in common, ensuring comprehensive resolution of property disputes.

    Facts

    The plaintiffs, a subset of the tenants in common, brought an ejectment action against the defendant to recover possession of land. During the pendency of the action, some of the plaintiffs died. The defendant argued that the action was defective because the heirs of the deceased plaintiffs were not brought in as parties.

    Procedural History

    The lower court ruled in favor of the plaintiffs. The defendant appealed, arguing that the action was improperly maintained by only some of the tenants in common and that the failure to include the heirs of the deceased plaintiffs rendered the action defective. The New York Court of Appeals reviewed the case to determine the propriety of the joint action and the effect of the plaintiffs’ deaths during the lawsuit.

    Issue(s)

    Whether a joint action of ejectment can be maintained by a portion of several tenants in common, specifically whether some but not all tenants in common can jointly sue to recover property.

    Holding

    No, because statutory provisions dictate that tenants in common must either bring separate actions for their individual shares or join together in one action for the entire property, thereby precluding a joint action by some but not all tenants in common.

    Court’s Reasoning

    The court reasoned that under the Revised Statutes, tenants in common must either bring separate actions for their respective shares or join in one action for the entire premises. The court noted that prior to the Revised Statutes, New York allowed tenants in common to make a joint demise, effectively allowing a joint action of ejectment based on joint possession, despite their separate titles. However, the Revised Statutes aimed to establish a uniform course of procedure for real property actions. The court emphasized that allowing some, but not all, tenants in common to bring a joint action would permit splitting claims and potentially harass the defendant with multiple actions. The court stated, “The real plaintiff, having the right to use all their names, should not be permitted to split up his claim and harass the defendant with several actions in the names of his grantors separately. His right is entire, and the reasonable interpretation of section 111 is, that the term grantor is intended to embrace all the granting parties when they are more than one.” The court concluded that all tenants in common, or their heirs/legal representatives, should be parties to the action, and if any refuse to join as plaintiffs, they may be made defendants.

  • Tefft v. Munson, 57 N.Y. 97 (1874): Estoppel by Deed and Priority of Mortgages

    Tefft v. Munson, 57 N.Y. 97 (1874)

    A grantor who conveys land with a warranty of title is estopped from later asserting a title acquired after the conveyance against the grantee; this estoppel also binds subsequent purchasers who are in privity of estate with the grantor, and a recorded mortgage from the grantor before acquiring title takes priority over a deed from the grantor after acquiring title, even if the deed is recorded first.

    Summary

    This case addresses the issue of priority between a mortgage recorded before the mortgagor obtained title and a subsequent deed recorded after the mortgagor obtained title. The court held that the mortgage took priority based on the doctrine of estoppel by deed. Martin B. Perkins mortgaged land to the loan commissioners with a warranty of title, then later acquired title and conveyed it to Tefft. Tefft argued his deed had priority because the mortgage was recorded before Perkins owned the land. The court rejected this argument, holding that Perkins was estopped from denying he had title when he mortgaged the property, and Tefft, as his privy in estate, was similarly estopped.

    Facts

    1. Martin B. Perkins executed a mortgage on certain lands to the loan commissioners, containing a warranty of title.
    2. At the time of the mortgage, Martin B. Perkins did not actually own the land.
    3. The mortgage was duly recorded.
    4. Subsequently, Martin B. Perkins’ father conveyed the land to Martin B. Perkins.
    5. Martin B. Perkins then conveyed the land to the plaintiff, Tefft.
    6. Tefft recorded the deed from Perkins.

    Procedural History

    The plaintiff, Tefft, brought suit claiming his deed had priority over the mortgage to the loan commissioners. The lower court ruled in favor of the defendant (Munson, representing the loan commissioners). Tefft appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether a mortgage recorded before the mortgagor obtains title has priority over a deed from the mortgagor after he obtains title, when the deed is recorded after the mortgage.
    2. Whether the plaintiff, as a subsequent grantee, is estopped from denying that his grantor had title at the time of the mortgage.

    Holding

    1. Yes, because the mortgagor is estopped by his warranty of title from denying that he had title at the time of the mortgage. The estoppel binds the land.
    2. Yes, because the plaintiff is in privity of estate with his grantor and is therefore also estopped from denying the grantor’s title at the time of the mortgage.

    Court’s Reasoning

    The court based its decision on the doctrine of estoppel by deed. The court stated, “It is a principle of law, not now open to doubt, that, ordinarily, if one who has no title to lands, nevertheless makes a deed of conveyance, with warranty, and afterward himself purchases and receives the title, the same will vest immediately in his grantee who holds his deed with warranty as against such grantor by estoppel. In such case the estoppel is held to bind the land; and to create an estate and interest in it.” The court reasoned that because Perkins warranted the title in the mortgage, he and those in privity with him (like Tefft) were estopped from later denying that he had title at the time of the mortgage. The court emphasized that the estoppel binds not only the parties but also “all privies in estate, privies in blood and privies in law.” Therefore, for purposes of determining priority, Perkins must be treated as having had title at the time the mortgage was executed and recorded. This makes the mortgage prior to Tefft’s deed. The court referenced the analogous case of White v. Patten which involved similar facts and arrived at the same conclusion. The Court reasoned that registry laws do not protect a purchaser who is estopped from denying the prior encumbrance.

  • In re Howe, 1 Paige 125 (N.Y. Ch. 1828): Priority of Judgment Liens Over Subsequent Equitable Liens

    In re Howe, 1 Paige 125 (N.Y. Ch. 1828)

    A prior judgment lien, which is a general legal lien, takes precedence over a subsequent equitable lien, particularly when the equitable lien is based on a pre-existing debt rather than a new consideration advanced on the faith of the specific lien.

    Summary

    This case addresses the priority between a judgment lien and a subsequent equitable lien on real property. The court held that the judgment lien, being a prior legal lien, had priority over the equitable lien. The equitable lien, which arose from a pre-existing debt, lacked the merit of being created on new consideration advanced specifically on the credit of the property. The court reasoned that without such new consideration, the equities were equal, and the legal rights of the judgment creditor prevailed. The decision highlights the importance of legal liens and the circumstances under which equitable liens can take precedence.

    Facts

    Howe, the complainant, had an agreement with Allen whereby Allen would give Howe a mortgage on certain land within ten days of acquiring title. Before Allen acquired the title, a judgment was entered against him, creating a judgment lien. After Allen acquired the title, Howe sought to enforce his equitable lien (the promised mortgage) and claim priority over the judgment lien.

    Procedural History

    The case originated in the New York Court of Chancery. The complainant, Howe, sought a decree establishing the priority of his equitable lien over the defendant’s judgment lien. The lower court ruled against Howe, and he appealed.

    Issue(s)

    Whether a prior judgment lien, which is a general legal lien, takes precedence over a subsequent equitable lien on the same property, when the equitable lien is based on a pre-existing debt.

    Holding

    No, because to give an equitable lien priority over a pre-existing judgment lien would be going “further than any adjudged cases, and further than the principle upon which they are founded will warrant.”

    Court’s Reasoning

    The court reasoned that prior legal liens, such as judgment liens, generally have priority over subsequent equitable liens. The court distinguished cases where an equitable lien was created based on a new consideration advanced on the faith and credit of the specific lien. In this case, Howe’s equitable lien was based on an old debt. The court stated, “[I]n order to entitle the equitable lien to this preference, it should at least have the merit of having been created on some new consideration advanced bn the faith and credit of the specific lien then created—and not be founded on an old debt.” Because Howe’s equitable claim was based on a prior debt, the equities were equal, and the defendant’s legal right as a judgment creditor prevailed.

    The court also noted that the agreement between Howe and Allen allowed Allen ten days after acquiring title to execute the mortgage. This timeframe contemplated the possibility of intervening liens. The court reasoned, “At the date of this agreement the judgment was in existence, and the parties must be deemed to have contemplated the state of things which would have been produced, if the contract had been carried out according to its terms… Thus the defendant would have had the oldest lien.”