84 N.J. Eq. 95 | New York Court of Chancery | 1914
This is a bill to. foreclose a mortgage. The mortgage was not recorded until nearly three years after its execution. In the meantime, a judgment was recorded against the mortgagor, and the mortgaged property levied upon and sold. The bill charges that the purchaser at the sheriffs sale had notice of the unrecorded mortgage. The proofs are that the judgment creditor had no notice, nor is there an averment in the bill that he liad. Unrecorded mortgages are void and of no effect against a subsequent judgment creditor not having notice thereof. Comp. Stat. p. 3414 § 22. In order that a judgment creditor may have the full benefit of the statute, the protection afforded to him is to be extended to the purchaser at the execution sale; and, even though the latter had notice, he takes the land free of the complainanfis mortgage. Sharp v. Shea, 32 N. J. Eq. 65; Condit v. Wilson, 36 N. J. Eq. 370; Paul v. Kerswell, 60 N. J. Law 273.
The owner, defendant, filed a cross-bill to relieve the mortgaged premises of the cloud of the defunct mortgage. This, I understand, is not resisted, in view of the opinion above expressed as to its invalidity. The defendant is entitled to costs.