50 N.Y. 61 | NY | 1872
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *63 The parties to this appeal are contesting claimants to the surplus moneys arising from the sale of mortgaged premises under a judgment of foreclosure, upon which both had liens, and the only question is as to the priority of the respective claims.
The appellant, Griffin, claims as a lienor under chapter 335 *64 of the Laws of 1853, giving to mechanics and others erecting buildings, performing work or furnishing materials therefor in the county of Kings, the right to a lien on the building and appurtenances, and upon the land on which the same shall stand, for the value of such labor and materials. The lien was perfected by filing the notice required by law in the office of the county clerk, on the 7th of June, 1870, and judgment was given thereon on the 12th of January, 1871. Neither the notice filed with the clerk of the county or the judgment roll in the action brought to enforce the lien appear in the record, but the referee has found the facts as stated, and no objection appears to have been taken upon the hearing to the validity of the lien or the regularity of the proceedings to assert it.
It is now claimed, upon a single expression in the testimony of the appellant, Griffin, that there could have been no lien under the statute. But it evidently was not the subject of contest upon the reference. The appellant was not examined as to the foundation of his claim, the statement and notice by which the lien was attempted to be created is not before us, and there is not enough in the record to enable us to pronounce understandingly upon the question now for the first time made. It must be assumed that a lien was created, valid in law, on the mortgaged premises on the 7th of June, 1870, in favor of the appellant, as found by the referee.
The respondent, Mrs. Burchard, claims as mortgagee, or rather as the assignee of a mortgage, in virtue of a mortgage by the owner of the premises, bearing date March 29, 1870, acknowledged April 21, recorded April 22, and assigned to the respondent August 27, of the same year. The mortgage bears date and was recorded anterior to Griffin's lien, but Mrs. Burchard acquired the title to it on a day subsequent to the creation of the lien.
The mortgagee named in the mortgage was one Peter Reilly, the father of the mortgagor, who never had possession of or title to it, and there was no consideration for the mortgage as between the mortgagor and mortgagee. The mortgage *65 was made for the purpose of raising money thereon for the mortgagor and was assigned to Mrs. Burchard for that purpose, the mortgagor receiving the money paid therefor by Mrs. Burchard. The referee has found from the facts that the mortgage was recorded, and that the nominal mortgagee was made acquainted with the contents of the assignment when he executed the same, and that before taking the assignment Mrs. Burchard required and obtained from the mortgagor an affidavit (untrue in fact) that the mortgage was a valid security for the whole amount secured by it, and that the money was advanced by the mortgagee for it; and as a conclusion of law, that the bond and mortgage were delivered to the mortgagee before the purchase thereof by Mrs. Burchard. The fact of delivery at any time to the mortgagee was not found, but the reverse was clearly proved, and there was no attempt to prove that the mortgage was valid as security in favor of the mortgagee, or that any lien ever existed under it in his behalf. The mortgagor was by his representations estopped from disputing the validity of the mortgage in the hands of Mrs. Burchard.
As against him, Mrs. Burchard's rights were perfect. But the rights of Griffin and his lien could not be affected or destroyed by any act or representation of Reilly done or made after the lien was of record. He was no more affected by the acts of Reilly which would operate as estoppels in pais against him, than he would have been by an other act or deed of the same person. (Berdan v. Sedgwick,
The mortgagee never had at any time a lien upon the mortgaged premises, either as against the mortgagor or any other person claiming a lien thereon. He never had a claim that could have been enforced adversely to any one, and could have made no claim to the surplus moneys in controversy.
The lien of Griffin upon the premises was superior in law and in equity to any claim the mortgagee could have made under the mortgage.
Whatever vitality the mortgage has is by reason of the purchase of it by and the assignment to Mrs. Burchard. *66
As a security for any amount, or a lien for any purpose, it only has life and validity from that time, and that transaction cannot upon any principle have a retroactive operation so as to give effect to the mortgage at an earlier day to the prejudice of others having vested rights.
Legal and equitable rights of others, existing before and at the time, cannot be displaced or superseded by that transaction.
A mortgage or grant only takes effect from the time of delivery. (1 R.S., 738, § 138.) This mortgage first took effect by delivery upon the assignment to Mrs. Burchard. The fact that she was defrauded cannot affect the legal and actual condition of the mortgage as against third persons having legal and equitable claims upon or title to the mortgaged premises.
It is well settled that a seller or assignor of chattels or choses in action can give no other or better title than he himself has, and that the purchaser or assignee must be content to stand in his place and to accept his title. There are certain recognized exceptions to the rule, adopted from motives of public policy, either to promote the negotiability of commercial instruments or to prevent fraud, but this case is not within any of the exceptions.
A mortgage is not negotiable, and it is not pretended that Griffin, the appellant, is estopped by any act or representation, or that he is for any reason in a situation in which it would be a fraud or contrary to equity or good conscience for him to assert his rights as against the respondent, Mrs. Burchard.
One who takes an assignment of a bond and mortgage, as did Mrs. Burchard in this instance, takes it subject not only to any latent equities that exist in favor of the mortgagor, but also subject to the like equities in favor of third persons and strangers.
Mrs. Burchard has taken especial care to foreclose all equities of the mortgagor, and should he attempt a defence to the mortgage, he would be precluded under one of the exceptions *67
to the rule restricting the title which an assignee may acquire to the actual title of the assignee, adopted for the prevention of fraud. (McNiel v. Tenth National Bank,
This court applied the rule in the case cited, to one who had purchased a mortgage from an assignee under an assignment absolute in terms, but which was in fact made as a security for a smaller amount and in favor of the assignor, giving him the benefit of the latent equity existing in his favor resulting from the agreement between him and his immediate assignee, and of which the purchaser from him was entirely ignorant. The case has been repeatedly cited with approval, and full effect given to the principles there enunciated. (Sheldon v. Edwards,
It follows that the maxim qui prior est tempore, potior estjure, must prevail. The appellant has the older and therefore the better title to the surplus moneys in controversy. He cannot be deprived of his lien by the fraud practiced upon the respondent. She took but the title which the mortgagee could by an assignment of the mortgage give, and that was to *69 a mortgage taking effect by delivery at that time, and of course subject to all prior liens and existing equities of others.
The order of the General and Special Terms must be reversed, and an order granted directing the surplus moneys to be paid to the appellant, Griffin.
CHURCH, Ch. J., PECKHAM and RAPALLO, JJ., concur.
GROVER, J., concurs in result.
FOLGER, J., does not vote.
Ordered accordingly.