242 F. 484 | 2d Cir. | 1917
The plaintiff, as trustee in bankruptcy of Henry D. Drewes, brought this suit in ecpiity to set aside a conveyance by him and wife to the defendant Louis D. Leseman of certain real estate at Richmond Hill, Eong Island, dated January 19, 1915, on the ground that it was a preference under section 60b- of the Bankruptcy Act; Drewes being then insolvent, Eeseman haying reasonable cause to believe that he was insolvent, and that the conveyance would effect a preference, and Drewes having been adjudicated a bankrupt within four months, on a voluntary petition filed March 5, 1915.
The evidence is that Eeseman loaned Drewes, who was his brother-in-law, $3,500 September 17, 1912, payable on demand. In November, 1912, he demanded payment, and Drewes gave him two demand notes, together with a deed for the premises at Queens, Long Island, in which he was conducting his grocery business, as security. This deed was not recorded by Eeseman, but it was good between the parties and against all the world, except subsequent purchasers in good faith and for a valuable consideration fróm the same vendor, whose conveyance is first recorded. Section 291, Real Property Law.
In January, 1915, Drewes secured an offer for his business, stock on hand, and premises at Queens from one Sedorf of $1,625 in cash and
“S,ec. 258. Effect of Nonpayment of Taxes. No mortgage of real property sliaíl be recorded by any county clerk or register, unless there shall be paid the tax imposed by and as in this article provided. No mortgage of real property which is subject to the taxes imposed by this article shall be released, discharged of record or received in evidence in any action or proceeding, nor shall any assignment of or agreement extending any such mortgage be recorded.”
This provision of the state law as to evidence applies to actions in its own courts, not to actions in the federal courts. Blodgett v. Zinc Co., 120 Fed. 893, 897, 58 C. C. A. 79; Groton Bridge Co. v. American Bridge Co. (C. C.) 151 Fed. 871, 876; Johnson v. New York Breweries Co., 178 Fed. 513, 101 C. C. A. 639.
Then it is argued that, notwithstanding the testimony to the contrary, the unrecorded deed must have been surrendered January 18th, because Drewes on that date gave a full warranty deed of the Queens premises to Sedorf. But the unrecorded deed, in the absence of notice, would not affect Sedorf’s title, and it is not only more consistent with all probabilities that Sedorf had no such notice, but also with the express testimony that Leseman surrendered it to Drewes in exchange for the deed to the Richmond Hill premises the next day, and that the deed and the notes were then destroyed. ,
The decree is affirmed.