8 Barb. 9 | N.Y. Sup. Ct. | 1850
1. The question first made by the counsel for the plaintiff is, that the mortgage sale, under which it is claimed that Minard acquired the title to the lot and premises sold to the defendant, was irregular and void, and that Minard in truth acquired no title thereto; for the reason that the mortgaged' premises consisted of distinct lots and parcels, which should have been sold separately. It is provided by the statute regulating the foreclosure of mortgages by advertisement, (2 R. S. 546, § 6,) that if the mortgaged premises consist of distinct farms, tracts or lots, they shall be sold separately, and that no more farms, tracts or lots shall be sold than shall be necessary to'-satisfy the amount due on the mortgage &c. Without deciding what effect upon the rights of a purchaser at a mortgage sale, a disregard of the provision of the statute would have in a case to which it was applicable, I am satisfied that it does not affect the rights of Minard, as a purchaser, in the case now before me.
The statute I think was designed to provide for a sale of mortgaged premises consisting, at the time of the mortgage, of “ distinct tracts, farms or lots ” and mortgaged and described as such, and not for the sale of premises mortgaged as one farm, tract or lot, and being in fact but one farm, tract or lot, at the time of the mortgage, but subsequently subdivided for the convenient occupation of the mortgagor, or for the purposes of sale. In such case, equity alone can protect the rights of the purchasers of separate parcels of the premises, if indeed they have any rights as against the mortgagee except to pay the
2. The time of the actual recording of the affidavits of the sale, &c. to Minard can not affect his title, acquired by his purchase at the sale, as against the defendant) for the reason that he had full notice and knowledge of it at the time he took his title from Tomlinson. (Jackson v. Leek, 19 Wend. 339. Van Rensselaer v. Clark, 17 Id. 25. Merrick v. Post, 15 Id. 588.)
3. It being established that the legal title to the premises, at the time of the sale from Tomlinson to the defendant, was in Minard and not in Tomlinson, but that Tomlinson had possession of them, which possession he yielded to the defendant, who accepted his deed of the premises with covenants of warranty, and took and retains possession under such deed, is there a total want or failure of consideration, which will defeat a recovery on the bond given for the purchase money 1 The seal to the bond is only presumptive evidence of a sufficient consideration,
In this case the defendant received the possession from Tomlinson and still retains that possession, and until he has been evicted or has been compelled in some way to recognize the title of Minard, upon some claim made by him, it appears to me
4. It is next insisted that the contract is void by reason of the fraudulent representations of the vendor Tomlinson. I am
Judgment must be given for the plaintiff for the instalment due.