2 N.J. Eq. 239 | New York Court of Chancery | 1839
The complainant’s mortgage bears the earliest date of any of the present incumbrances oil the property which it covers. It is said to be antedated, but it is not so proved, and if it might be surmised from the attendant circumstances that it does not carry its true date, yet it does not appear when it was in fact executed. The money for which this mortgage was given was applied to pay off a previous mortgage held by Samuel Oliver on the property, and the complainant might by assignment of such mortgage have been placed as the first incumbrancer. I suppose the complainant’s was in fact, therefore, the first lien, and was so intended to be. By the neglect of Mr. Sfansbury, the complainant’s agent, as he swears, the mortgage was not placed on record until after Samuel Campbell’s mortgage for seven hundred dollars, which bears a later date. After the complainant placed his mortgage on record, Samuel Campbell can-celled his mortgage of record, and took a deed from Inslee and wife for the property. This places the parties again as they originally stood; the complainant’s mortgage first, and Mr. Campbell’s second. It seems that the complainant’s mortgage was received in the office to be registered on the 21st of April, 1837, at half-past ten in the morning, and the mortgage of Campbell was cancelled and his deed recorded on the next day.
The defendant alleges, that his mortgage was cancelled and his deed taken by the fraudulent management and misrepresentation of Elias Stansbury, the complainant’s agent. Had this been made out in the pioof, I should readily have protected the defendant ; but there is, in my opinion, a failure to sustain by evidence this part of the case. There is, it is true, an appearance ©f a studied silence on the part of Stansbury respecting the com
As the defendant has failed to sustain his case by sufficient evidence, the complainant is entitled to the ordinary decree on his mortgage.
Decree accordingly.