The action is in ejectment for the recovery of a piece of land in the village of Nunda, county of Livingston. Under the findings of the trial court there is but a single question presented to us on this appeal. The plaintiff traced her title from one Robert Girven, concededly the owner and in possession of the premises, who, on April 25th, 1889, mortgaged the property to one James H. Carmichael. The mortgage was subsequently assigned to Annie E. Yolger, and default having been made in its payment it was foreclosed by action. At the sale made under the judgment in said action the lands were sold and conveyed to Fred. M. Inglehart, who on the same day executed to said Yolger a mortgage to secure $1,000 of the purchase money. Mrs. Yolger subsequently *457 assigned lier mortgage to the plaintiff, who, default having been made in its payment, brought an action to foreclose the same. Under the judgment in that aetion Mrs. De Garmo, the plaintiff therein, purchased the mortgaged lands. In October, 1892, intermediate the execution of the mortgage from Girven to Carmichael and the sale under the judgment for the foreclosure of said mortgage, the defendant entered into possession of the premises, claiming title under deed executed by the county treasurer of Livingston county for non-payment of taxes, and has remained ever since in possession, claiming in hostility to the plaintiff and her predecessors in title. The trial court held that such adverse possession defeated the plaintiff’s title under the provisions of the statute (1 JR. S. p. 739, secs. 147, 148; Beal Property Law, chap. 547, Laws of 1896, § 225), which provide that “ every grant of lands shall be absolutely void, if at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor. But every person having a-just title to lands, of which there shall be an adverse possession, may execute a mortgage on such lands; and such mortgage, if duly recorded, shall bind the lands from the time the possession thereof shall be recovered by the mortgagor or his representatives.”
That judicial sales do not fall within the condemnation of these statutory provisions has been settled law from a very early time in the history of this state. (Tuttle v. Jackson, 6 Wend. 213; Hoyt v. Thompson, 5 N. Y. 320; Stevens v. Hauser, 39 N. Y. 302; Coleman v. Manhattan, Beach Impr. Co., 94 N. Y. 229.) Therefore, neither of the deeds made in pursuance of the judgments of foreclosure and sale was void. The statute does not assume to deal with assignments of mortgages, and in the only case that I can find in which the question was presented a similar statute was held inapplicable to such transfers. (Converse v. Searls, 10 Vt. 578.) Inglehart, therefore, by his purchase at the sale in the first foreclosure suit, acquired a perfect title, and the only doubtful link in the plaintiff’s chain of title is the mortgage which Inglehart gave back to the *458 plaintiff in the foreclosure suit to secure part of the purchase money. I concede that, though" Inglehart’s title was perfect, the statute rendered any voluntary conveyance by him, while the lands were in adverse possession by another party, void ; and while the statute authorized him to mortgage his lands, I assume that the effect of the provision that the mortgage shall bind the lands from the time the possession thereof is recovered by the mortgagor is to exclude such operation until possession is so recovered, which in this case never occurred. Hence, if the mortgage from Inglehart to Mrs. Volger, under the foreclosure of which the present plaintiff claims, had been given for any other purpose than to secure the purchase money, I am inclined to the view that the plaintiff’s title would fail. But there is a marked distinction between a purchase-money mortgage and any other. In the case of such a mortgage dower does not attach as against the mortgage, nor do existing judgments or claims against the mortgagor obtain priority over it. This is the rule in this state by statute; but the statute is only declaratory of the rule of law existing before it was enacted (Mills v. Van Voorhies, 20 N. Y. 412), and the same rule obtains in states where there are no statutes on the subject. (1 Jones on Mortgages, § 468.) Now, the ground on which this rule rests is not the superior equity of the holder of a lien for the purchase money, but the theory that the conveyance and mortgage, whether the latter be to the grantor or to a third party, are brit separate parts of a single entire contract. In Holbrook v. Finney (4 Mass. 566) a wife was held not entitled to dower in lands conveyed to her husband by his father and simultaneously mortgaged by the son to the father. It was there said: “ In the case at bar the execution of the two deeds, they being of even date, was done at the same instant and constitutes but one act.” This dictum was quoted with approval by Chief Justice Spencer in Stow v. Tifft (15 Johns. 458), saying: - “Where a deed is given by the vendor of an estate, who takes back a mortgage to secure the purchase money, at the same time that he executes the deed, the *459 deed and the mortgage are to be considered as parts of the same contract, as talcing effect at the same instant, and as constituting but one act.” In Clark v. Munroe (14 Mass. 351) the doctrine of Holbrook v. Fin/ney was applied in favor of a third party who advanced a portion of the purchase money, to secure which he received a mortgage. “ A deed and purchase-money mortgage, given at the same time, are to be construed together as forming one instrument or contract.” (Rawson v. Lampman, 5 N. Y. 456.) In Curtis v. Root (20 Ill. 53) Chief Judge Catón said: “ The execution of the deed and of the mortgage being simultaneous acts, the title to the land does not for a single moment rest in the purchaser, hut merely passes through his hands and vests in the mortgagee without stopping at all in the purchaser, and during such instantaneous passage the judgment lien cannot attach to the title. This is the reason assigned by the books, why the mortgage takes precedence of the judgment rather than any supposed equity which the vendor might be supposed to have for the purchase money.” In that case the mortgagee was not the grantor, but a third party. If the doctrine of these cases be sound, it seems to me that Mrs. Volger, to the extent of her mortgage interest, whether it be considered a lien or a conditional estate, was just as much a purchaser at the judicial sale had under the decree as was Inglehart, the mortgagor, and that she acquired her title from the court, not from Inglehart, but merely through Inglehart as a conduit. It was her money that went to satisfy the decree and she was the plaintiff in the foreclosure suit, and, if necessary, it might be well held that the new mortgage was a mere extension pro tanto of the old mortgage under foreclosure. The mortgage to her, therefore, did not fall within the statute.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.