37 N.Y.S. 859 | N.Y. App. Div. | 1896
The trial court held that the purchasers under the sheriff’s deed could take only the actual interest which the execution debtor, N athan Beman, had in the premises at the time the judgment was. docketed against him, September 11, 1873, and that, as he had, November 5, 1870, by his assignment of the executory contract to Wead, under whom plaintiff holds, parted with all his interest, the sheriff’s grantees took nothing by the deed, and had nothing to protect by recording it. There is no evidence that William S. Douglas and John W. Beman, the purchasers at the sheriff’s sale, had notice- or were charged with notice of the contract or of the rights or-claims of any of the parties to it. They bid and paid $327 for the-land ; this is some evidence — perhaps as much as it is reasonable to-expect—in support of a negative sought to be proven after the death of the purchaser Douglas. We think the finding of the learned trial judge that William S. Douglas was not a bona fide purchaser and was not without notice of the lien of the contract cannot be sustained. This finding seems to be based upon the assumption stated in the opinion of the learned judge that “ the case is entirely barren of evidence in that particular.” But the burden of showing notice: rested upon the plaintiff, who sought to impeach the record purchaser’s good faith. (Brown v. Volkening, 64 N. Y. 76.) Assuming that William S. Douglas was a purchaser in good faith and not charged with notice of the contract, we think the sheriff's deed to-him and Beman was within the protection of the Recording Act. It is the law of this State that in the absence of fraud a judgment only takes effect upon the actual interest in land which the judgment debtor has at the time of the recovery of the judgment. (Trenton Banking Co. v. Duncan, 86 N. Y. 221; Frost v. Yonkers Savings Bank, 70 id. 553; Clute v. Emmerich, 99 id. 342.)
The judgment debtor, Nathan Beman, had the legal title, but had sold the equitable title. This naked legal title, destitute of any
If Nathan Beman, instead of giving a contract of sale, had given a deed of the land to the plaintiff, and he had failed to record it, the subsequent recorded deed to the defendants would be preferred. If the unrecorded deed is not protected, much less the contract for it.
The judgment should be reversed, new trial granted, costs to abide event.
An concurred.
Judgment reversed, new trial granted, costs to abide the event.
