p. 825Philip Van Alstine, Respondent, v. Jennie E. Matthews, Appellant, Impleaded with Eleanor M. Hubbell and Others, Defendants.Headnote
Mortgage — foreclosure — procuring satisfaction piece through deceit and fraud — rights of purchaser of mortgaged premises.Plaintiff in an action to foreclose a mortgage alleged that a satisfaction piece previously delivered to the defendant mortgagor had been procured through deceit and fraud. It appeared that prior to the delivery of the satisfaction piece the mortgagor had sold the premises. Evidence examined, and
Held, that a judgment of foreclosure holding the satisfaction piece null and void by reason of fraud should be affirmed;
That, since the plaintiff’s mortgage was on record at the time the premises were transferred by the mortgagor, the purchaser acquired no rights superior to those of the plaintiff.
Appeal by the defendant, Jennie E. Matthews, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 30th day of January, 1915, upon the decision of the court after a trial at the Sullivan Special Term setting aside a satisfaction piece and granting other relief in an action for the foreclosure of a mortgage.
John D. Lyons, for the appellant.
Hamilton B. Squier, for the respondent.
Eleanor M. Hubbell made, executed and delivered her bond and mortgage, upon certain premises in Sullivan county, on the TTth day of June, 1910, to the plaintiff, and the present action is brought to foreclose such mortgage. On the 29th day of March, 1912, the plaintiff delivered a satisfaction piece for said mortgage to the defendant Eleanor M. Hubbell, who gave her promissory note in connection With the transaction, though it appears that said note was never paid. On the 18th day of January, 1912, prior to the giving of the satisfaction
p. 826piece, Eleanor M. Hubbell made and delivered a deed of the premises involved in this litigation to her aunt, the defendant, appellant, Jennie E. Matthews, such deed having been recorded on the 19th day of January, 1912. This deed is alleged to have been given in consideration of an indebtedness of $2,000 due to the said aunt, Jennie E. Matthews, and the latter subsequently paid off certain liens upon the premises. The complaint alleges that the satisfaction piece, delivered to Eleanor M. Hubbell, was procured from the plaintiff through deceit and fraud, and a jury impaneled by the court has found in favor of the plaintiff upon this issue, and the judgment of the court grants foreclosure, holding the satisfaction piece null and void by reason of such fratid. The result is that the plaintiff has judgment of foreclosure, and the defendant Jennie E. Matthews holds the title subject to the mortgage and the judgment of foreclosure. The defendant Jennie E. Matthews appeals from the judgment.
We are of the opinion that the verdict of the jury and the decision of the court is fully justified by the evidence; that the defendant Jennie E. Matthews took no rights superior to those of the plaintiff, but in subordination to his rights. At the time the deed was made and recorded the plaintiff’s mortgage was on record in the clerk’s office of Sullivan county, and if she took title and made payments on account of the premises she did so .at her own risk, not at the risk of the plaintiff. The subsequent granting of a satisfaction piece, induced by fraudulent representations on the part of the defendant Hubbell, could not operate to increase the rights of the defendant Jennie E. Matthews, and no one else appeals from the judgment.
The judgment appealed from should be affirmed, with costs.
Judgment unanimously affirmed, with costs.