Jackson ex dem. Beebe v. Austin — 15 Johns. 477

Majority

p. 477

Jackson, ex dem. Beebe, against Austin.

Headnote

The preference of a mortgage given by the purchaser of lands, sold and conveyed, at the same time, to secure the payment oi the purchase money, to any previous judgment, which may have been obtained against the purchaser, is not restricted to the case of a mortgage to the vendor of the land, there being no restriction in the words of the statute concerning mortgages^ sess. 36. c. 32. s. 15. by which this preference is created: and, therefore, if the purchase money be advanced by a third person, to xvhom the purchaser, at the same time that the conveyance is executed to him, executes a mortgage of the same land, to secure the money advanced, such mortgage is entitled to the same preference over a prior judgment, as the vendor of land would have had, had the mortgage been executed to him.

THIS was an action of ejectment for part of lot No. 45, in the town of Locke, in the county of Cayuga ; the parties, by consent, without trial, made a case for the opinion of the court, which was submitted without argument.

The plaintiff and defendant both derived their title from John Van Deusen, who went into possession of the premises in question as assignee of one Bailey, to whom they had been leased by Isaac Cooper. On the 21st of October, 1815, Van Deusen surrendered the lease to Cooper, and took a déed from him for the premises, for the consideration of 500 dollars. The lessor of the plaintiff, on the same day, at the request and for the benefit of Van Deusen,

p. 478

executed a note to Cooper, for the amount of the considerra¿¡on money, which the lessor afterwards paid; and Van Deusen, on the same day, executed a mortgage to the lessor ofthe plaintiff, of the premises in question, as his indemnity for the note which he had given. The mortgage was duly recorded on the 31st of October, 1815, and on the !0th of November, 1817, the premises were sold, under the power contained in the mortgage, and were hid off by an agent of the lessor of the plaintiff, to whom the lessor conveyed them, and he reconveyed to the lessor.

Previously to the execution of the mortgage, Walter Wood obtained a judgment in the court of common pleas of Cayuga county, against Van Deusen, and one Solomon Austin, for 228 dollars debt, and 10 dollars damages and costs, which was filed and docketed on the 15th of September, 1815. Áfi.fa. was issued, and the premises in question were levied upon, and were sold by the sheriff, on the 12th of March, 1816, to the defendant. A deed was executed on the same day by the sheriff to the defendant, which was duly acknowledged and recorded on the 22d of March.

The question of priority will depend on the statute, (1 N. R. L. 375.) which declares that whenever lands are sold and conveyed, and a mortgage is given by the purchaser, at the same time, to secure the .payment of the purchase money, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser. The mortgage in this case comes within the letter of the act. It was executed by the purchaser, Van Deusen, to secure the purchase money, and was given at the same time with the deed, although not given to Cooper, from whom Van Deusen derived title. But this cannot vary the principle upon which the statute appears to be founded. The lessor of the plaintiff advanced the purchase money, and took the mortgage to himself. The act probably contemplated cases where the mortgage was given to the seller of the land. But the words of the act are not restricted to such cases, and a just and fair construction

p. 479

will warrant its application to the present case. The plaintiff is, accordingly, entitled to judgment.

Judgment for the plaintiff,^[1] & r 7

(a) (a) Vide Stow v. Tifft, ante, p. 458. Clark v. Munroe, 14 Mass. Rep. 351 .