15 N.Y.S. 359 | N.Y. Sup. Ct. | 1891
On the 1st day of January, 1875, James Mitchell was the owner of about 268 acres of land, being the premises described in the complaint. On that day he executed a mortgage thereon, in which his wife joined, to Samuel Douglas to secure the payment of $4,000, January 1, 1878. with annual interest. The mortgagee having died, the executor of his estate, on June 8, 1876, assigned the mortgage to Emily Douglas, which assignment was recorded on that day. January 1, 1878, Mitchell and wife, by warranty deed, conveyed to the appellants eight acres of the premises mortgaged. On the same day Emily Douglas, who was then the owner of the bond and mortgage, executed and delivered a release of the eight acres thus conveyed from the lien of her moitgage. January 3, 1883, Emily Douglas assigned to the plaintiff a portion of the bond and mortgage, and on February 13th of the same year assigned to him the remainder thereof. The assignments of the bond and mortgage to the plaintiff were recorded on the days on which they were made, while the deed given by the mortgagor to the appellants, and the release of the portion of the premises so conveyed given by the then owner of the bond and moi tgage, were not recorded until February 25, 1886. The eight acres conveyed to the appellants consisted of a strip of land about nine rods in width, extending across the farm from north to south. 1-t was pasture land, upon which there were no buildings, and none were erected thereon by the appellants; but immediately after they purchased they fenced the land, presumably by removing the fence about nine rods from its former location, and used it as a pasture. The plaintiff resided 15 miles distant, and was not shown to have had any knowledge of the situation of the premises, or how they were occupied. The trial court held that the plaintiff purchased the bond and mortgage in good faith and for a valuable consideration; that he thereby became a subsequent purchaser, within the meaning
The question involved in this case is not, as the appellants’ counsel seems to suppose, what rights the plaintiff acquired by virtue of his assignment, as it is clear that independent of tlie recording act he acquired no greater rights than his assignor possessed. But the question here is, what rights did he acquire, if any, by virtue of the recording act, as a subsequent purchaser whose assignment was recorded prior to the recording of the appellants’ release? In other words, tlie plaintiff’s superior rights, if he has any, were acquired, not under his contract alone, but by virtue of the rights given by the recording act to a subsequent purchaser whose conveyance is first recorded. Indeed, there is no pretense that, independent of the recording act, the plaintiff acquired any right to sell the eight acres in question. Hence the only question in the case relates to the application of that act. Therefore the next question presented is whether a release of a part of mortgaged premises is a conveyance, within the provisions of the recording act. The term “ conveyance” is declared by that statute “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. *=•=*” 4 Rev. St. (8th Ed.) p. 2475, § 38. In Bacon v. Van Schoonhoven, 87 N. Y. 446, it was held that a satisfaction piece of a mortgage was a “conveyance,” within the meaning of the recording act. In delivering the opinion in that case, Rapallo, J., said: “It [a satisfaction piece] is equivalent to a release of the mortgaged premises. Instruments creating liens by way of mortgage being expressly declared to be embraced, for the purposes of this act, in the term • conveyance, ’ it is difficult to conceive any reason .why instruments discharging such liens should no't be included in the general definition of ‘instruments by which any estate or interest in land may be affected in law or equity.’” In Brewster v. Carnes, 103 N. Y. 562, 9 N. E. Rep. 323, it was said: “It is a well-established principle of law that the assignment of a mortgage, and the satisfaction of the same, are conveyances, within tlie meaning of the recording act. Van Keuren v. Corkins, 66 N. Y. 77; Westbrook v. Gleason, 79 N. Y. 23, 25; Decker v. Boice, 83 N. Y. 215; Bacon v. Van Schoonhoven, 87 N. Y. 446.” In Insurance Co. v. Wilcox, 55 How. Pr. 43, it was held that a release of a part of mortgaged premises was a “conveyance” within the recording act. See, also, St. John v. Spalding, 1 Thomp. & C. 483, and opinion of Vann, J., in Frear v. Sweet, 118 N. Y. 463, 23 N. E. Rep. 910. The doctrine of the cases cited leads us to the conclusion that the court properly held that the release to the appellants of a part of the mortgaged premises was a “conveyance” within, tlie meaning of the recording act, and that the appellants’ release was void as to the plaintiff’s assignment, which was first recorded, if he was a purchaser in good faith and for a valuable consideration.
, This leaves for consideration the question whether the plaintiff was a subsequent purchaser in good faith and for a valuable consideration. It is well settled that, as an assignee of the mortgage, the plaintiff became a purchaser
4 Rev. St. N. Y. (8th Ed.) p. 2460, § 1.