35 Barb. 330 | N.Y. Sup. Ct. | 1861
I agree with the referee that the discharge of the mortgage in question by Brockway, the administrator of the mortgagee, after he had assigned the mortgage to the plaintiff, without payment and without authority from the assignee, had no other effect than to cancel the record of the mortgage, and left the plaintiff in the condition of the holder of an unrecorded lien upon the mortgaged premises. The validity of the mortgage was in no way affected by the discharge, excepting to take away its priority over the defendants’ deed. Brockway, the administrator, had really no more right to receive payment of the mortgage, or to satisfy it of record, than any other stranger. Payment was
But I am constrained to differ with the learned referee in the proposition that the direct notice to Scofield of the mortgage, given to him before his deed from Chappell was recorded, was equivalent to a record, and preserved the priority of the lien of the mortgage. That notice was given after he had made the purchase, paid his money and taken his deed. The transaction between him and Chappell, of the purchase of the mortgaged premises, was completed and his rights had become fixed. After that, a notice to him would be of no service whatever. The referee finds, distinctly, that the defendant Scofield was a hona fide purchaser from Chappell, the owner of the land, in good faith, for a valuable consideration, and without knowledge or notice of the mortgage held by the plaintiff. The revised statutes provide that every conveyance of real estate, within this state, shall be recorded in the office of the clerk of the county where such real estate shall be situated; and if not so recorded, shall be void as against any subsequent purchaser in good faith for a valuable consideration, of the same real estate or any part thereof, whose conveyance shall be first duly recorded. (1 R. S. 756, § 1, ch. 3, part 2.) By sections 36, 37 and 38 of the same chapter, (p. 762,) the terms “real estate,” “purchaser” and “conveyance,” as used in that chapter, are defined. “Beal estate” is defined to embrace, among other things, all chattels real, except leases for a term not exceeding three years. (§ 36.) A mortgage is a chattel real. (Burrill’s Law Dic. “Chattels real.”) The term “purchaser” embraces anas
But with respect to the portion of the mortgaged premises not embraced in Scofield’s recorded deed from Chappell, the lien of the plaintiff’s mortgage is prior and superior to Scofield’s title through his unrecorded deed. The parties stand upon equal grounds, as far as the record is concerned, and the statute only gives priority to a recorded conveyance; and the mortgage being anterior to the last deed, must prevail over it.
The judgment appealed from, so far as it subjects that part of the mortgaged premises described and embraced in the deed from the defendant Chappell to the defendant Scofield, dated April 21st, 1858, and recorded May 4th, of that year, to the lien of the mortgage from the defendant Carpenter to Phebe Brockway, dated March 19th, 1851, and assigned by her administrator to the plaintiff, is reversed, and the premises last referred to declared discharged and free from the lien, operation and effect of that mortgage. The lien of said mortgage upon the residue of the mortgaged premises to be declared valid and effectual. The defendant Carpenter to be charged personally with any deficiency that may appear by the sheriff’s report of sale, and none of the other defendants to be so charged. The judgment to be modified accordingly, and to be in all other respects affirmed.
Smith, Johnson and Welles, Justices.]