Jackson, ex dem. Rounds v. M'Chesney

7 Cow. 360 | N.Y. Sup. Ct. | 1827

Curia, per Sutherland, J.

The acknowledgment in a deed, of the receipt of the consideration money, is prima fade evidence of its payment. It is equivalent to, and like a receipt for money. It is liable to be explained or Contradicted ; but until impeached, it is legal and competent evidence of payment. Bor is its operation confined to the immediate parties to the deed. It does not operate by way of estoppel; but as evidence merely, and * must have the effect of sustaining the deed, by establishing, prima fade, the consideration for which it was given, against any person w^° ma7 seek collaterally to impeach it. (Kip's Executers v. Deniston, 4 John. 26; Shepherd v. Little, 14 John. 210; Thallhimer v. Brinckerhoff, 6 Cowen, 102; 2 Phil. Ev. 62, note (b.) )

Where a bill is filed to set aside a deed as fraudulent, and the grantee in his answer alleges that he was bona fide purchaser, without notice of the plaintiff’s claim, he must aver and prove, not only that he had no notice of the plaintiff’s rights before his purchase, but that he had actually paid the purchase money before such notice. Even if the purchase money be secured to be paid; yet, if it be not in fact paid before notice, it will not sustain the plea of a purchase for a valuable consideration, without notice. ^[1] (7 John. Ch. Rep. 68; 1 Atk. 538; 2 Atk. 630; 3 Atk. 304.) But there is no analogy between those cases, and an action of ejectment, where the strict legal title must prevail.

Groves, the mortgagor, had a direct interest in the recovery of the plaintiff. His conveyance to Wright was by a quit-claim deed; so that he was not responsible to him in any event. But if the lessors of the plaintiff should fail to recover the land, he would be liable to Hester Viele, the mortgagee, upon his bond. Should they recover, they might resort to the mortgaged premises; and he be relieved wholly or partially from payment. He was, therefore, properly rejected.

Rufus Wright, then, was a bona fide purchaser, without notice of the mortgage; and held the land discharged from its lien. And though the mortgage was subsequently registered, its lien was not thereby restored, so as to affect subsequent purchasers. Wright held the land discharged from the mortgage; and his grantees succeeded to all his rights.

The motion to set aside the nonsuit must, therefore, be denied.

Motion denied.

END OF MAT TERM.

[1] See Am. Ch. Dig. by Waterman, tit. Vendor and Purchaser; Dart’s Vendors and Purchasers of Real Estate, Waterman’s notes, p. 389, et seq.