32 Barb. 469 | N.Y. Sup. Ct. | 1860
By the Court,
The fundamental propositions on which the defendant relies to bar the plaintiff’s recovery, have all been considered and held untenable in the cases of Main v. Green, and Main v. Davis,
1. It is alleged that the plaintiff failed to show a delivery of the deed whereon he seeks to recover. The execution of the deed was duly proved, and it was read in evidence without objection. That included the question of delivery, and the objection at the close of the case came too late. The plaintiff further proved the payment of rent thereon by John McPherson, the immediate grantor of the defendant. This sufficiently established the existence and validity of the instrument; especially when taken in connection with the mort
Gould, Hogeboom and Peckham, Justices.]
2. The mortgage was proper evidence, for the reasons stated in the plaintiff’s points, to wit, as evidence of the defendant’s claim and title to the premises—as evidence of the defendant’s derivative title under McPherson—as some evidence of the quantity of land—and as evidence of the recognition of the plaintiff’s title and rent.
3. The defendant was sufficiently shown to be the assignee. He was in possession himself; he took title from McPherson who was in under the plaintiff; he mortgaged the land, in an instrument which recognized the patroon and rent. (9 Cowen, 88. 4 Wend. 318. 12 id. 555. 4 Hill, 113.)
4. The statute of 1860 cannot affect the case. The plaintiff’s claim had passed into a judgment and become a vested right. (Dwar. on Stat. 676. 1 Hill, 332. 2 id. 238. 5 Duer, 183.) Hor was the statute of 1805 essential to support the plaintiff’s claim. (Main v. Davis, above referred to.)
The judgment of the circuit court must be affirmed.
See ante, pp. 448, 461.
