12 Barb. 677 | N.Y. Sup. Ct. | 1852
By the Court,
The mortgage of Calvin Tanner to Dennis Tanner, transferred to the latter the entire legal title to the cow, subject only to be defeated by payment of the mortgage debt according to the terms of the mortgage. (Butler v. Miller, 1 Comst. 496, 500. Coles v. Clark, 3 Cushing, 399, 401, 2.) Upon the default of the mortgagor in payment, the legal title of the mortgagee to the animal was perfect. Thenceforth the mortgagor had only an equity of redemption, which, on his death, descended to whoever represented him as to the property. (Burdick v. McVanner, 2 Denio, 170, and cases cited.) But as the cow was left in the possession of the mortgagor, although the mortgage was duly filed in the proper town clerk’s office, inasmuch as a true copy of the mortgage, with a statement exhibiting the interest of the mortgagee in the property, was not filed within thirty days next preceding the expiration of the term of one year from the filing of the mortgage, as required by law, the mortgage ceased to be valid, as against a subsequent purchaser in good faith, after the expiration of one year from the filing of the same. (Laws of 1833, p. 402, §§ 1, 3. Gregory v. Thomas, 20 Wend. 17.) The protection
The withdraAval of this mortgage from the clerk’s office by the mortgagee, leaving the cow with the family of the mortgagor,
It is claimed on the part of the appellant that the widow had no title to the cow, and that a bona fide purchaser succeeds only to the rights of his vendor. The same objection might be made if the mortgagor had sold before his death and after the year. She stood in his place, and had all his rights. But it is by operation of the statute that the purchaser obtains title, and not because the seller had a title.
There was some conflict in the testimony, on the question whether the plaintiff had notice of the mortgage when he purchased, but the judgment of the justice, so far as that point is concerned, could not be reviewed by the county court, and can not be by this court.
The judgment of the county court was right, and must be affirmed.
Selden, Johnson and T. R. Sh-ong, Justices.]