2 Barb. Ch. 555 | New York Court of Chancery | 1848
The equitable interest of the appellant, m the property sold under the decree in this cause, if she had any, was prior to the execution of the complainant’s mort gage. And as her petition states that she was in possession of the premises at that time, under her agreement with the trustees of the corporation, and down to the time of the sale by the master, the complainant and the purchaser at the master’s sale were bound to take notice of her equitable rights, if any such existed; such possession being constructive notice to them. (Chesterman v. Gardner, 5 John. Ch. Rep. 29. Grimstone v. Carter, 3 Paige's Rep. 421. Gouverneur v. Lynch, 2 Idem, 300. Brown v. Anderson, 1 Monro's Rep. 201. Tuttle v. Jackson, 6 Wend. Rep. 226, and cases there cited.) Her equitable claim upon the property, therefore, was not cut off by the foreclosure and sale, unless she was made a party to the foreclosure suit; and she may still enforce it against the house and lot, in the hands of the purchaser, who bought the same at the master’s sale with constructive notice of all the equitable rights which her advance of the $3750, and the taking possession of the premises under the alleged agreement with the trustees of the corporation, gave her. It does not appear by the petition, or otherwise, that the appellant was a party to the foreclosure suit. The purchaser, therefore, must be presumed to have bid upon the property with reference to her claim to an equitable interest therein prior to the giving of the mortgage, and at the time of the sale, and that the amount of the proceeds of the sale was diminished pro tanto. For this reason she has no claim upon these surplus moneys; which have not been produced by the sale of her equitable interest in the premises. It is not necessary, therefore, to inquire whether a parol agreement with the trustees, and the advancement of her money and taking possession pursuant to such agreement, could give her an equitable interest in the permanent use and possession of real estate, without rent, where the trustees with whom she dealt could not themselves sell their interest in the estate without a previous order of the chancellor. (Laws of 1817, p. 241, § 1.)
Again; if the complainant had any equitable lien upon the
The order appealed from must be affirmed, with costs.