25 Barb. 399 | N.Y. Sup. Ct. | 1857
A mortgage is an executed contract, and gives a present interest in or to the land, by way of lien upon it. It is a deed, to be void on a certain event. Like other executed contracts of an infant, it is valid until some act is done by him to avoid it.' In this case the infant did no such act. The deed to Strong, the trustee, did not refer to the mortgages; it simply “ conveyed all the undivided moiety of all those certain lots” in question. The grantee under such a deed would take subject to any prior mortgages. Such would be its intent, when the contrary was not expressed. It is impossible, then, to infer that this deed repudiated, or was intended to repudiate, the mortgage to the plaintiff, j The subsequent acknowledgment of the mortgage was a ratification of it, and related back, in its effect, to the first delivery, and affected all intermediate persons except purchasers for a new and valuable consideration. The trustee was not such a purchaser. There was no valuable consideration for the deed to him. (See Stafford v. Roof, 9 Cowen, 626; Bigelow v. Grannis, 2 Hill, 120; Lathrop v. Furguson, 22 Wend. 116; Bool v. Mix, 17 id. 119 ; The Eagle Fire Co. v. Lent, 6 Paige, 635; Dominick v. Michael, 4 Sand. 418.)
The judgment should be affirmed, with costs.
Mitchell, Roosevelt and Peabody, Justices.]
