34 Barb. 9 | N.Y. Sup. Ct. | 1860
The plaintiff asserts a legal claim to the property, and must succeed, if at all, upon the establishment of a legal title to it. He cannot recover upon any equity as between himself and his lessee, and it is not necessary to consider their respective rights, legal or equitable, as against each other. There is no claim made that the transaction between the plaintiff and Smith was fraudulent as against the creditors of the latter; nor was the justification of the defendant put upon the ground that the interest or title of the plaintiff was that of mortgagee for a debt not due, with a right of possession for a definite time in the mortgagor, which was the subject of levy and sale upon execution against him. The only question made at the circuit or presented by the bill of exceptions, is whether the plaintiff had title to the property in dispute. That property must have an actual
Mullin, J. concurred. Morgan, J. dissented.
Judgment affirmed.
Allen, Mullin and Morgan, Justices.]