33 N.Y.S. 765 | N.Y. Sup. Ct. | 1895
The question presented on this appeal is whether the plaintiffs, who are assignees of a mortgage, can enforce it against a purchaser of a part of the mortgaged property, who is in possession, and who holds his title under a prior recorded deed from the mortgagor and a prior unrecorded release from the mortgagee. The facts of the case are undisputed. On May 4, 1863, Jacob M. Ousterhout executed the mortgage in question to David and Mary Fish. On May 2, 1867, the mortgagees released to Ousterhout 27 acres of the mortgaged land, and on the same day Ousterhout conveyed said 27 acres to Benjamin Hicks. The deed from Ousterhout to Hicks was recorded on June 27,1868, but the release had not been recorded at the time of the commencement of this action. Benjamin Hicks conveyed the land to Ury Hicks in 1875, and the deed was recorded. On May 15, 1876, the mortgage and accompanying bond were duly assigned to Simmons White, and by several mesne assignments were transferred to the plaintiffs’ testator, who became the owner thereof on May 1, 1882. All of the several assignments of the bond and