7 N.Y. 141 | NY | 1852
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *143 The mortgage sought to be foreclosed was executed on the 3d of August 1839, by Jeremiah W. Blydenburgh to Richard F. Blydenburgh, for $3,497.13 payable on the 1st of March, 1840. The mortgagee assigned it to William C. Atwell on the 5th of August, 1839. Atwell assigned it to Calder on the 17th of March, 1840, to secure the payment of $250. On the 17th of March, 1840, Calder assigned it to the plaintiffs to secure the payment of the like sum.
J.W. Blydenburgh by deed bearing date, May 4th 1840, executed *145 in presence of J.F. Searing, and acknowledged before him as commissioner of deeds on the first day of October of that year, conveyed the mortgaged premises to William C. Atwell in fee. The deed contained the usual full covenants. On the same day (October 1, 1840), Atwell made a certificate acknowledging that the mortgage in question was paid. This certificate was acknowledged on the same day before the same commissioner. The deed and certificate therefore seem to be part of one and the same transaction, both executed on the first of October. Looking at the affair in this light, it appears that J.W. Blydenburgh conveyed the land to W.C. Atwell in satisfaction of the mortgage.
It was clearly a fraud on the part of Atwell to give this certificate of satisfaction; because he had previously assigned the mortgage to Calder, and knew that he had no authority to discharge it.
J.W. Blydenburgh sets up in his answer (not under oath), that he paid the mortgage money to Atwell in good faith, and without notice of the assignment to Calder. But there is no proof of the payment of any money by Blydenburgh to Atwell. It appears that he conveyed him the land; and in Atwell's hands the land is clearly chargeable with the payment of the complainant's debt, and neither W.C. Atwell nor George Atwell, to whom the land was afterwards conveyed, have appealed from the decree. The only ground, therefore, if there be any, on which J.W. Blydenburgh can complain of the decree is, that he is charged with the payment of the deficiency in case the mortgaged premises should fail to bring, upon a sale, a sum sufficient to satisfy the complainant's demand. Judging of the value of the land from the amount of the purchase money expressed in the deed, the amount of the plaintiff's demand is so small as to show that objection to the decree to be rather formal than substantial. But were it otherwise, the decree ought not to be reversed on this point. There are circumstances in the case which ought to have put Blydenburgh upon inquiry as to Atwell's right to discharge the mortgage debt. The bond and mortgage were not in his possession at the time the certificate *146 of discharge was given. The complainants in their bill offer to produce them, and the inference is that they were in the complainants hands when the discharge was given. There is neither allegation nor proof that Blydenburgh made any inquiry of Atwell for the bond and mortgage, or that any misrepresentation was made by Atwell on that point. In the common and usual course of business, Atwell, if he had been the owner of the bond and mortgage, would have delivered them to Blydenburgh when the satisfaction was acknowledged; and it is against all probability that Blydenburgh would have paid the debt either in money or by a conveyance of the land without inquiry for his bond. That inquiry would have resulted either in a discovery of the fact that the securities had been previously assigned by Atwell, or in a misrepresentation made by him of the true state of the case. Such a misrepresentation might have excused Blydenburgh. It would have been evidence of his good faith in taking the discharge. His answer not being on oath, is not evidence in his favor, and the circumstances referred to raise a presumption against him which he was bound to remove by proof. This he has not done.
Sherwood was a purchaser pendente lite and after notice oflis pendeus filed. He is therefore to be regarded as a purchaser with notice of the complainants' claim.
GRIDLEY, J., was absent.
Judgment affirmed *147
