3 Wend. 208 | N.Y. Sup. Ct. | 1829
By the Court,
At the circuit there were two issues to he tried, viz. on the first and sixth pleas. The judge directed the jury to find the issue on the first plea for the defendants: they did so, and assessed the damages at $42,75, and under his direction also they found the issue on the sixth plea for the plaintiff, subject to the opinion of this court. We are now called upon to render judgment upon this verdict; I will therefore state the several findings of the jury.
Upon the first issue they find (to negative the plea) that William Dean was seised, as averred in his avowries, and leased the premises to Dyer, who held the same as tenant to Dean; and that the plaintiff Brown held as the assignee of Dyer, and as tenant to Dean, and they assessed the defendant’s damages to $42,75; and upon the sixth issue they find that the indenture by way of mortgage, and the indenture of lease given by way of defeasance, mentioned in the third avowry, were never recorded according to law; that Dyer being in possession, and claiming to be seised in fee simple, the plaintiff having no notice of said deed and defeasance, on the 4th April, 1826, became, and was the purchaser bona fide of said premises from Dyer, for the full value thereof; and that Dyer and wife conveyed to him, and his deed was recorded, by which he became seised in fee of the said premises.
The conveyance from Dyer to Dean, though absolute in its terms, being accompanied by a writing operating as a defeasance, according to the statute last cited, must be considered as a mortgage between the parties; but not being registered as a mortgage, was inoperative and void as against the plaintiff, who was a bona fide purchaser for valuable consideration. The first issue in fact, therefore, which was found for the defendants, should have been for the plaintiff; Dean having been originally but a mortgagee, and never seised in fee of the premises, nor did the legal relation of landlord and tenant exist between Dean and Dyer; much less did it exist between Dean and the plaintiff Brown. Whether it is competent for a mortgagor and mortgagee to create between them the relation of landlord and tenant, and to give the mortgagee a remedy by distress for the interest or principal, it would be useless to enquire, because the question here is not between those parties. Conceding therefore, for the sake of argument, that it may be done, (on which question however, I give no opinion,) the rights of these parties would not be affected by it; for though the deed and defeasance operated between the parties as a mortgage, yet as between
The plaintiff is clearly entitled to judgment upon the facts as they appeared in evidence. But as they appear upon paper in the form of a demurrer book, they are, by the ingenuity of the pleaders, so involved in the mazes of special pleading, that a considerable portion of patience and perseverance has been found necessary to disentangle them. [The Chief Justice here enters into a minute examination of the pleaings, and then proceeds as follows:]
One general" demurrer is put in to four pleas, and special causes are assigned to each, which, however, all involve the main question, viz. whether the deed and lease executed between Dyer and Dean, taken together, constitute a mortgage, and if so, then, as the mortgage was not registered or recorded, and as the plaintiff had not notice of it previous to his purchase, whether it is valid as against him 1 On the part of the defendants it is contended that Dyer was Dean’s tenant, and that the plaintiff purchasing from the tenant, comes into his place, and is estopped from denying title in Dean.
It is contended by the defendants that the second plea is bad because it does not traverse the demise in the first avowry, but attempts to introduce a collateral issue. Whatever in pleading is not denied is admitted; but a party pleading may admit the facts stated in the pleading which he professes to answer, and then aVer matter in avoidance. So here, the
I am of opinion, therefore, that though these pleas may be informal, yet they are substantially good, and that the plaintiff is entitled to judgment upon the demurrers and the whole record.
Judgment for plaintiff
Justices Sutherland an Marcy did not hear the argument, and gave no opinion.