Hyperlawhypertext legal databasebeta Donovan v. Twist 83 N.Y.S. 76

← Cases

Donovan v. Twist

83 N.Y.S. 76 Court N.Y. App. Div. Decision date 1903-06-30 English

Delivered by SMITH, J.

Contents

Majority

p. 76
(85 App. Div. 130.)
DONOVAN v. TWIST et al.
(Supreme Court, Appellate Division, Third Department.
June 30, 1903.)

Headnote

1. Mortgage — Title in Another — After-Acquired Title — Mortgagor's Subsequent Grantee.
A mortgage without covenants of seisin or warranty, executed before the mortgagor obtained title to the property, and containing no statement estopping him from setting up a subsequently acquired title, is inoperative against his subsequent grantee.
Appeal from Trial Term, Tompkins County.
Action by John Donovan against Salem Twist and others. Judgment for plaintiff, and defendant Twist appeals.
Reversed.
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 Tompkins county clerk’s office on the 24tli 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 N. Noble, which deed was recorded upon the said 27th 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. Prom this judgment the defendant Twist has appealed.
Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.
James L. Baker, for appellant.
Tompkins, Cobb & Cobb, for 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 seisin 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 á title subsequently acquired. Jackson v. Dittell, 56 N. Y. 108 ; Sparrow v. Kingman, 1 N. Y. 256 ; McCrackin 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 seisin, 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 seisin or of warranty, and no statement by which the mortgagor

p. 77
can be estopped from claiming that his title was subsequently acquired ; and therefore no estoppel 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.

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

Footnotes

  1. ¶ 1. See Estoppel, vol. 19, Cent. Dig. §§ 99, 108.

Cases cited