Pitney v. Leonard

1 Paige Ch. 461 | New York Court of Chancery | 1829

The Chahoellor :—I have not thought it necessary to examine the question whether Aaron Pitney had the legal title to the land at the time he conveyed to J. Leonard. The latter went into possession under that title, which is to be presumed good until the contrary is shown. From the testimony adduced, there is no doubt the judgment in the ejectment suit was confessed for the purpose of destroying the lien of the complainant’s mortgage. It was fraudulent and void as against him; and it is hardly possible to believe B. Leonard was not acquainted with the real nature and object of the transaction. He had at least sufficient to put him on inquiry, and that in equity is equivalent to a notice.^[1] He admits that he knew of the bond and mortgage, and the judgment which Pitney had obtained against his father on the bond. He knew his father had been contesting the title against Baldwin for years; and as the lands lay within sight of the court house, he could not have supposed that they had been recovered on a trial in the usual way. The judgment was filed and docketed at Htica on the 18th of May. The execution was delivered to the sheriff on the 16th; and on the same day, after allowing himself to be turned out of possession with all due formality on an execution against his father, he purchased the 854 acres of land, worth more than $6,000, for the trifling consideration of $750; and both himself and father return back into possession thereof. Under all these circumstances, he either knew the real nature and object of these proceedings or remained wilfully and intentionally ignorant. The judgment in the ejectment suit, and the proceedings and change of possession of the mortgaged premises under the same, must, therefore, be declared fraudulent and void as against the complainant. There must be a reference to a master to compute the amount due on the bond and mortgage, and the usual decree for the sale of the *119 acres of the mortgaged premises, on the coming in and confirmation of the master’s report; and that the purchaser be let into possession on production of the master’s deed, and a copy of the order confirming the report of the sale. And if the mortgaged premises do not sell for sufficient to pay the costs, over and above the amount reported due, with interest, the costs, or so much as is deficient, must be charged personally on the defendants.

[1] Peters v. Goodrich, 3 Conn. 146; Booth v. Barnum, 9 Conn. 286; Hawley v. Cramer, 4 Cow. 717; Brush v. Ware, 15 Pet. 112; Jackson v. Cadwell, 1 Cow. 622; Tuttle v. Jackson, 6 Wen, 213; see also Am. Ch. Dig. by Waterman, tit. Notice.