Card v. Bird

10 Paige Ch. 426 | New York Court of Chancery | 1843

The Chancellor.

I have no doubt that the vice chancellor arrived at the correct conclusion, that the execution of the conveyances from Card to Lull, and from the latter to Bird, took place in the morning of the 17th of March, and before the entry and docketing of Webb’s, judgment against Lull. Several witnesses concur in the fact that the deeds and mortgage were executed about breakfast time in the morning, and were acknowledged and delivered immediately thereafter. And they state facts from which it is hardly possible that they should be under a mistake as to the time. That judgment, therefore, was never a legal lien on the interest either of Lull or of Bird in the mortgaged premises. And whatever the equitable claims of Webb might have been, under the written agreement of Bird, made on the 19th of March, to pay and satisfy that judgment as a part of the purchase money of the premises, it must, as a mere equitable lien, be postponed to the legal lien which Chandler acquired as a bona fide mortgagee of the premises, without notice of any equitable claim of Webb thereon under the agreement between Bird and Lull. Whether it was entitled to a preference, as an equitable lien for unpaid purchase money, over the general liens of the previous judgments existing against Bird, is a question which cannot arise upon this amended appeal to which the judgment creditors are not parties. And it could not have arisen on the original appeal in the name of the complainant. For as he never had any interest in that question, he could not have had the decree reversed or modified for an error which did not in any way affect his rights.-

The remaining questions are, whether the mortgage given by Lull and wife, in 1834, was a valid and subsisting incumbrance upon the premises in the hands of Chandler the assignee; and whether, if so, it is entitled to a preference in payment over the subsequent mortgage given by Bird to P. Card I If the certificate of acknowledgment of that mortgage was in evidence before the vice chancellor, so as to render it proper to give any opinion upon its construction, I should be inclined to think, from the two certificates endorsed upon the mortgage, at the same time, that the husband and wife both came before the commissioner, that the husband being known to him he took his acknowledgment without any evidence to establish his identity, and endorsed the certificate of acknowledgment accordingly j and that the wife being unknown to him, he examined the subscribing witness to prove her identity as the person described in and who executed the mortgage; and that she then acknowledged the execution thereof in the usual form, before the commissioner. But the certificate of acknowledgment is so inartificially drawn, that I admit there is much room for doubt as to its legal effect.

It is not necessary, however, to decide what is the effect of this mortgage as against Bird, and those claiming under him as his judgment creditors ; or whether his assignment of this mortgage to Frost, for a full consideration, as a good and subsisting security upon the premises, would not in equity estop him and them from insisting that it was never executed in such a manner as to make it a valid lien upon the interest of the mortgagors in the premises. For the question here is not between the respondent and Bird, or those creditors, but between him and the appellants, as the assignees of the interest of the complainant in the suit. It must therefore be decided upon the pleadings between the complainant and the respondent, and upon such of the proofs as are pertinent to the matters put in issue by those pleadings.

By adverting to the complainant’s bill it will be found to be stated, as a matter of fact, that Mrs. Lull and her husband executed and delivered this mortgage to Bird, and that it was recorded on the 7th of November, 1834. And the only questions raised in reference to it, by the bill, were whether it had been assigned to Frost prior to the conveyance from Lull to Bird *? and whether it was entitled to a preference over the mortgage of the complainant 1 The answer of the defendant Chandler admitted the execution and delivery of that mortgage, by Lull and wife, and the recording thereof, as stated in the bill ; and only put in issue the allegations of the complainant that it was not assigned to Frost previous to the conveyance to Bird, and as to the execution of the mortgage to P. Card, and the payment thereof, &c. Neither of those parties, therefore, nor the appellants as the assignees of the complainant, had any right to call’ in question the due execution of the mortgage from Lull and wife, which was thus admitted both by the bill and answer. And for all the purposes of the present appeal, it must be presumed to have been duly executed, by Lull and wife, in the manner required by law to make it a valid mortgage of the interests of both of the mortgagors in the premises.

Is this mortgage, then, entitled to a preference in payment over the mortgage of the complainant 1 Although the title was first conveyed to Lull, and from him to Bird, who gave a mortgage back to Card for a part of the purchase money, it was in fact all one transaction ; so that there was but an instantaneous seizin in either, so far as related to the lien of the mortgage of Card upon the land. And his rights, as against the judgment creditors of Lull, or of Bird, were the same as if the deed had been given directly from him to Bird, and the mortgage for the purchase money had been taken back at the same time. I have no doubt, therefore, that the mortgage of Card was entitled to a preference over prior judgments against either Lull or .Bird. (Clark v. Monroe, 14 Mass. Rep. 351. Stow v. Tifft, 15 John. Rep. 458. 1 R. S. 749, § 5.) And if the prior mortgage in this case had been executed by Bird, and had not been a lien upon the title conveyed by Card to Lull.and by him to Bird, I think the mortgage given back for the purchase money would have been entitled to a preference in payment; although Card claims through Bird, who knew that the previous mortgage had been assigned to Frost, and who could not therefore set up a want of notice of that assignment. But as Card himself had derived his title to the premises under Mrs. Lull, subsequent to the mortgage from her and her husband to Bird, he only conveyed his equity of redemption in the premises, through Lull to Bird, subject to the mortgage which was then in the hands of Frost as the assignee thereof. And by the mortgage from Bird, Card got back no greater interest in the premises than he conveyed; although there was but an instantaneous seisin, in Lull and in Bird, which seisin could not give any rights to third persons as against the lien of the mortgage given for the purchase money. The vice chancellor was therefore right in giving a preference in payment to the first mortgage of the respondent, which had been assigned to him by Frost previous to the commencement of this suit. And being entitled to a preference in payment as to that mortgage, Chandler was entitled to his costs of establishing such preference, as a prior claim upon the proceeds of the sale of the mortgaged premises.

The decree appealed from is therefore affirmed with costs, to be paid by the appellants Webb Sc Averill. And the proceedings are remitted to the vice chancellor.