44 Barb. 166 | N.Y. Sup. Ct. | 1861
It seems to me very clear, upon the plaintiff’s own showing, that he is not entitled to the relief sought by this action. The most favorable light in which his claims can be considered is to regard him as a purchaser for value and in good faith, without notice of the deed to Viele. Thus regarded, he acquired by his deed from Mr. Judd, the purchaser at the foreclosure sale, the title which Mrs. Card, the mortgagor, had before she gave the mortgage. (Smith v. Gardner, 42 Barb. 366, 367, and authorities cited by Daniels, J.) The title of Mrs. Card was superior to that subsequently acquired by Viele ; for although her mortgage Avas unrecorded, the plaintiff proves, without dispute, that Viele purchased with actual notice of the mortgage. Against this notice, the registry of his deed was of no avail. (9 John, 163. 2 John. Ch. 603. 6 Wend, 213.) As the defendant claims under Viele, the plaintiff clearly has the superior legal title. Besides, he is in possession, and it does not appear that the defendant has attempted to disturb him. If she should bring an action to recover the possession the facts shown by him would constitute a complete defense at law. Under these circumstances, it is obvious that the plaintiff has not been damnified. It seems equally obvious that it is not a case in Avhich he can call for the interposition of a court of equity, quia timet. The superiority of his legal title can admit of no doubt. But however that may be, it is enough to say that his complaint does not ask for relief on that ground. The gist of the cause of action alleged in the complaint, and which the palintiff's counsel claims the eid
There is another consideration which in. this case is fatal to the plaintiff's motion. If the plaintiff stands in the place of Mrs. Card, the original mortgagee, having a title superior to that of Yiele, it is obviously immaterial to him whether
The judgment should be affirmed.
Judgment affirmed.
JE. Darwin Smith, J. C. Smith, and Johnson, Justices,]