59 Barb. 585 | N.Y. Sup. Ct. | 1871
Prior to October, 1828, James Mellen .owned the premises in controversy. Mellen, by deed dated the 1st of that month, conveyed them to one Aspinwall. Aspinwall made the purchase for himself, Philo'Stevens and-Benjamin Xott, each of whom advanced one third "of the purchase money. January 26th, 1830, Aspinwall conveyed two thirds of the said premises in fee to Stevens.. Ebtt, as I understand the ease, was equitable owner of one half of the premises conveyed to'Stevens. "While Aspinwall held the title, contracts were executed to sundry persons for the sale of portions of said lands. Some of the purchasers went «into possession of the lands so purchased, and they or their assignees paid up the purchase money' and received deeds. After the deed from Aspinwall to Stevens, other parcels of land were contracted to be sold, the purchasers entered, the contracts were paid up, and deeds given. On the 18th of July, $Tott conveyed, by quit-claim deed, his interest in the premises to Stevens, and took back a bond for $2800, and a. mortgage on the premises conveyed by Mellen, as collateral. STott, on the 1st of July, 1834, assigned the bond and mortgage to the plaintiff. After this assignment was made, Mott, without the plaintiff’s knowledge or consent, released to Steyens portions of said mortgaged premises, and Stevens there
The referee has ordered judgment dismissing the plaintiff’s complaint, as to the lands sold prior to the mortgage, and as to the lands released after the same was given, and directs foreclosure and sale only of the remainder of said ■ lands.
The plaintiff, appeals, and insists that it is not chargeable with notice of the rights of purchasers of portions of the lands, and that the release by Nott did not impair its lien on the premises released by him.
, It will be unnecessary to enter upon an examination of the rights of the separate purchasers, or of the separate-lots released. They may be arranged into two classes, and the principle which governs them ascertained and applied. Should there be found a case requiring a- separate consid- . eration, it will be examined by itself.
First. As to the lands sold before the mortgage was given to Nott, Nott having paid one third of the purchase money to Mellen, the conveyance to Aspinwall did not destroy that interest, and by the statute then in force a trust resulted to him in said lands, to the extent of one third part thereof. (Jackson v. Sternbergh, 1 John. Cas. 153. Foote v. Colvin, 3 John. 216. North Hempstead v. Hempstead, .2 Wend. 109. Boyd v. McLean, 1 John. Ch. 582. Harder v. Harder, 2 Sandf. Ch. 17.) This trust having been created before 1830, is not affected by the provisions relating to result
If it ever became a lien on the lands under contract, it was a lien subordinate to the rights of the purchasers. If the mortgagee would acquire any interest through a subsequent mortgage, it could only be in the purchase money unpaid at the time notice of the mortgage was givén to the purchasers. When the purchasers took deeds, they were under no obligation to search for liens created after the making of the contracts of purchase, and they took the land purchased discharged of all such liens. The right of the purchasers to be protected against the mortgage, does not, in my judgment, depend on whether or not the mortgagee, Hott, had actual or constructive notice of the sales to them, by reason of their occupancy. As between him and the purchasers, he is not to be treated as an incumbrancer, but as the vendor, and as such, in law, charged with knowledge of the acts of his agent who made the sale. « It would be most inequitable to permit ÍTott to pocket his share of the price of the land, and then, having obtained a -mortgage from a joint owner, upon the property sold as well as that unsold, foreclose the mortgage and sell the lands which had been paid for, in satisfaction of the debt due from his co-owner. If he can sell after a part of the purchase money is paid, he may sell after it is all paid. The law is chargeable with no such injustice. If ÍTott was foreclosing, I entertain no doubt but that the purchaser, prior to the mortgage, would have a perfect defense to the action. The plaintiff is found, by the referee, to be a Iona fide purchaser for value, without notice of the contracts of sale theretofore made, or that the purchasers were in possession. By this finding, I suppose, it is meant that the plaintiff had no actual notice. That' it is charged with
It follows that the judgment dismissing .the complaint as to the parties defendant, who own the lands.contracted to be sold to the several persons he'rein before named, viz., John Claus, Fellows, Matteson, Weed and. Bowen, must be reversed, and a new trial ordered, costs to abide the event.
Mullin, P. J., and Johnson and Talcott, Justices.]