32 Barb. 389 | N.Y. Sup. Ct. | 1860
By the Court,
The complaint alleges that the plaintiff and the defendant Angelina T. Arthur, as heirs at law of Theodore B. Talmadge deceased, who died intestate, are seised of the premises claimed, and entitled to the possession thereof; and it has no other aspect or claim than to recover such possession with damages for the detention, in the usual form. The answer of the defendant Erastus A. Brewster, among other things, denies that Theodore B. Talmadge died intestate, hut says that at the time of his death he left a last will and testament executed in due form to pass real estate, and thereby made and appointed one Philip Burrowes executor thereof, with power to sell his real estate, which power was duly executed by the said Philip Burrowes by a sale and conveyance of the premises in dispute, and under which one Joseph K. Brick, whose tenant the defendant Erastus A. Brewster is, had become and was vested with the title in-fee to the lands claimed. The answer also denied the title and seisin of the plaintiff, and claimed that Joseph K. Brick was also entitled to the possession as the owner and assignee of the mortgage, which was due and payable and a lien upon the lands.
In itself the record of the proof of the will appears to be complete. It shows that Theodore B. Talmadge, at and immediately before the time of his death, was an inhabitant of the city of Hew York where the will was proved. That all the necessary parties were properly brought into the surrogate’s court, the witnesses duly examined, and their testimony recorded. It also shows, that in the execution and the publication of the instrument all the requisites of the statute of wills had been duly complied with. And but for the evidence aliunde we should, without any hesitation, adjudge that the defendant, Brastus A. Brewster, was entitled to hold the premises under the title derived from Philip Bur
Lott, Emott and Brown, Justices.]
The defendant claims title to the premises under the deed from Philip Burrowes, as also under the mortgage made by Peter Poillon to George Weeks. Theodore B. Talmadge took the deed from Peter Poillon subject to this mortgage, and upon which there was then due the sum of $4000, and interest from the time of the date of the deed to him George Weeks assigned the mortgage to Nelson G. Carman, who afterwards-assigned the same to Joseph K. Brick, the landlord of the defendant, Erastus A. Brewster. This mortgage has never been paid or satisfied, but is now a subsisting lien, upon the lands claimed, and is held for the purpose of assuring and protecting the title. Whatever may be the effect of the deed executed by Philip Burrowes under the power contained in the will of Theodore B. Talmadge, the relation of the defendant to the premises is that of mortgagee in possession. After forfeiture and condition broken, the mortgagee, if he be in possession, is considered as having the legal estate, and an action of ejectment cannot be maintained against him Whatever rights the plaintiff may have to these lands, it is quite clear she is not now entitled to recover the possession. (Phyfe v. Riley, 15 Wend. 248. Van Duyne v. Thayre, 14 id. 233.) Judgment should be entered for the defendant.