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Donovan v. Twist

85 A.D. 130 Court N.Y. App. Div. English

Delivered by Smith, J.:

Contents

Majority

p. 130
John Donovan, Respondent, v. Salem Twist, Appellant, Impleaded with William O. Essex and Caroline Smith Essex.

Headnote

Mortgage given by one who subsequently obtains title to the mortgaged premises—when not enforcible against q subsequent bona fide purchaser of the mortgaged premises.
A mortgage containing no covenants of seizin or warranty, executed and recorded before the mortgagor had acquired title to the premises described therein, has. no greater effect than a quitclaim deed, and is not enforcible against the-premises in the hands of a person who purchased them for value from the-mortgagor’s heir at law without actual notice of the existence of the mortgage.
Appeal by the defendant, Salem Twist, from a judgment of the-County Court of Tompkins county, entered in the office of the clerk of the county of Tompkins on the 6th day of January, 1903, upon the decision of the court rendered after a trial before the. court without a jury.
This action is brought to foreclose a mortgage given by William W. Smith upon the 23d day of March, 1882, to plaintiff to secure a bond wherein said mortgagor became bound to pay to the plaintiff the sum of $250. This mortgage was recorded in the Tomp
p. 131
kins county clerk’s office on the 24th day of March, 1882. At the time of the giving of this mortgage the said William W. Smith had no title to the property. Upon the 27th day of March, 1882, however, he received a deed of the property from one William 17.17oble, which deed was recorded upon the said twenty-seventh day of March. Thereafter, the said William W. Smith died, and upon the 7th day of December, 1901, the defendant Salem Twist received a conveyance of the property from the only heir at law of William W. Smith. This conveyance was received for a valuable consideration and without actual notice of the plaintiff’s claim. The trial court, after having found these facts, found as a conclusion of law that the defendant Twist took the premises subject to the lien of the plaintiff’s mortgage, and judgment was directed for a sale of the premises to pay said mortgage, From this judgment the defendant Twist has appealed.
James L. Baker, for the appellant. ' ;
Tompkins, Cobb <& Cobb, for the respondent.

The mortgage sought to be foreclosed was given by the mortgagor before he had acquired title to the premises described therein, and without any covenant of seizin or warranty. The rule of law is, I think, clearly established, that such a mortgage has no greater effect than a quitclaim deed, and is not operative upon a title subsequently acquired. (Jackson v. Littell, 56 N. Y. 108 ; Sparrow v. Kingman, 1 id. 256 ; M'Crackin v. Wright, 14 Johns. 193 ; Jackson v. Hubble, 1 Cow. 613 .) It may be that if this mortgage had contained a warranty of title or covenants of seizin, its record would have been constructive notice to the defendant although its date of record was prior to the date of the deed to the mortgagor. (See Tefft v. Munson, 57 N. Y. 97 .) In the cases cited upon the respondent’s brief the mortgages held valid as liens upon property subsequently acquired were all mortgages in which there was either a warranty or covenant by reason of which the mortgagor and his privies were estopped from denying the title which he had covenanted he possessed. In this mortgage, however, there is no covenant either of seizin or of warranty and no state

p. 132
ment by which the mortgagor can be estopped from claiming that his title was subsequently acquired. Ho estoppel, therefore,, can be urged against this defendant grantee, who took at least the rights which the mortgagor had at the time of his grant.

The judgment should, therefore, be reversed.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.

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