4 Johns. 216 | N.Y. Sup. Ct. | 1809
delivered the opinion of the court. The plaintiff having been nonsuited at the trial, has moved to set it aside. The facts are briefly these: Cornelius Low obtained a judgment, in the common pleas of Ulster, against Tunis Sammons, which was docketed on the 5th of August, 1801. An execution was issued on this judgment, dated the 28th September, 1806, and a sale was made by the sheriff thereon, of the premises in question, to the lessor of the plaintiff, and a deed was given on the 10th of March, 1807. Sammons's title to the premises on the 21st of March,
A mortgagee is considered at law, and for certain purposes, as the owner of the estate. It has been decided in this court, that his interest cannot be sold on execution,
There is no weight in the objection, that by Harris’s bidding at the vendue, he ought to be estopped from disputing the title of the purchaser at that sale. Sammons had a vendible interest in the premises, the equity of redemption. Harris’s bidding, when he had a right to presume every one who bid knew of his mortgage, is not irreconcileable with the situation in which he stood as mortgagee.
The suggestion, that by the arrangement which took place between Harris and Sammons, the mortgage was surrendered, is inconsistent with their declared intentions, and is contradicted by the lease itself; for by that, the existence of the bond and mortgage is recognised. I am satisfied, that the nonsuit was correctly ordered, and that the plaintiff can take nothing by his motion.
Rule refused.
Ante, p. 41. Jackson v. Willard.
1 vol. R. P. 481.