Wilson v. George Drake Smith & Co.

Headnote

YaMdity of a mortgage— given to the owner of land, who subsequently, and a year thereafter, conveys the pi'operty to the mortgagor', with, covenants of seizen, against ineumbramces and of warranty —as against judgment-creditors of the mortgagor.

Appeal by the defendants from a judgment recovered at the New York Special Term, and entered in the office of the clerk of the county of New York, August 11, 1888.

The judgment recovered is for the foreclosure of a mortgage •executed by the defendants, James A. Willoughby and Charles Willoughby, to the plaintiff, to secure the sum of $10,000, with .interest. The property described in the mortgage was a certain factory, with the machinery and improvements contained therein, lying and being at Fordham, in the city and county of New York, and known and designated on a certain map of property at Fordham by Nos. 483 and 484, on the easterly side of Hoffman street, 183 feet south of Pelham avenue. The building is then stated to cover two lots, owned by John A. Willoughby, and the mortgage to be given to secure the payment of a part or a portion of the purchase-money for the premises and the machinery. The title to these two lots was in the plaintiff when the mortgage was executed and delivered to him, and after that time, and over a year subsequent to the record of the mortgage, the plaintiff executed and delivered to James A. Willoughby, one of the mortgagors, a conveyance of this property, and in the conveyance covenanted that he was lawfully •seized of an absolute and indefeasible estate of inheritance in fee. simple of the premises conveyed; and that the same were free and clear of incumbrances, grants, titles, charges, estates, judgments, taxes •and assessments, and this was followed by a covenant for quiet possession.

The appellant, George Drake Smith & Company (Limited), .■advanced money to the mortgagors, for which judgments were confessed by them; and these judgments, under the circumstances, were relied upon as being prior liens upon the property to the plaintiffs mortgage. But it appeared by the proof that the agreement and understanding of the parties was that the plaintiff should •convey this property to the mortgagors and receive the mortgage •executed and delivered to him, as security for its purchase-price, and the advance of money made by him to them, and it was to carry out this understanding that both the mortgage and the deed were afterwards executed and delivered.

The court at General Term said: “When the mortgage was made the title of the plaintiff to the property was recognized and conceded in it. And while the language contained in the deed was very broad as to the title and incumbrances upon the property, it is not to be construed, and was not intended, to exclude or super

sede this mortgage, which was given to secure their obligations to. the plaintiff. These features of the case place it within the decision which was made in Judd v. Seehms (3 N. Y. Sup. Ct. [T. & C.], 266 affirmed, 62 N. Y., 266 ), sustaining the validity of the mortgage.”

[The balance of the opinion was taken up with the discussion of" the weight of evidence on the subject of notice. — Hep.]