Jackson ex dem. Tuthill v. Dubois

Spencer, J.

delivered the opinion of the court. The plaintiff having been nonsuited at the trial, has moved to set it aside. The facts are briefly these: Cornelius Low obtained a judgment, in the common pleas of Ulster, against Tunis Sammons, which was docketed on the 5th of August, 1801. An execution was issued on this judgment, dated the 28th September, 1806, and a sale was made by the sheriff thereon, of the premises in question, to the lessor of the plaintiff, and a deed was given on the 10th of March, 1807. Sammons's title to the premises on the 21st of March, 1800, was unquestioned. On that day, he executed a mortgage to Thomas Harris, of the premises, to secure the payment of 210 dollars, payable 1st April, after date. This mortgage was registered the 17th of April, 1802. At the sheriff’s sale, Harris appeared and bid several times, and gave no notice of his mortgage, nor did he forbid the sale. On the 26th of July, 1803, Sammons gave a lease to Harris of the premises, for ten years, to secure the payment of a balance of 400 dollars, due him from Sammons, and one-tenth of this balance was to be indorsed every year on the bond accompanying the mortgage; when this agreement was made, both parties talked of the bond and mortgage being in force.

A mortgagee is considered at law, and for certain purposes, as the owner of the estate. It has been decided in this court, that his interest cannot be sold on execution,* because it cannot be separated from the debt; and it has been considered as a security for money. Still, however, it cannot be denied, that the mortgagee has the title, so far as to enable him to maintain an ejectment on the mortgage, not only against the mortgagor, but against such as derive title under him, subsequent to the mortgage. The 2d section of the statute concerning mortgages,† gives priority, in case of several mortgages, of the same premises, to the first registered; and it provides that no mortgage shall defeat or prejudice the title or interest of any bona fide purchaser, unless the same be duly registered, according to the provisions of the statute. Before this statute, there was no necessity of registering mortgages; they would have stood upon the same footing as any other lien on real property. Since the statute, they must be registered, or lose their priority, as to junior mortgages, and be liable to be defeated, in case of a bona fide purchaser, prior to the registry. There is nothing in the statute which gives a preference to a judgment docketed over an unregistered mortgage. The judgment being by act of law, does not destroy the lien acquired by an unregistered mortgage, nor gain a preference over it. Should the mortgagee permit a sale to take place, prior to the registry, then, in my opinion, the vendee of the sheriff would be protected from the mortgage, and it would lose its priority. In the present case, the mortgage to Harris had been registered nearly five years prior to the sheriff’s sale. The mortgage being prior to the judgment, and the registry long before the sale, Harris had the legal title to the premises, and the lessor of the plaintiff must be deemed to have had notice of the mortgage when he purchased.

There is no weight in the objection, that by Harris’s bidding at the vendue, he ought to be estopped from disputing the title of the purchaser at that sale. Sammons had a vendible interest in the premises, the equity of redemption. Harris’s bidding, when he had a right to presume every one who bid knew of his mortgage, is not irreconcileable with the situation in which he stood as mortgagee.

The suggestion, that by the arrangement which took place between Harris and Sammons, the mortgage was surrendered, is inconsistent with their declared intentions, and is contradicted by the lease itself; for by that, the existence of the bond and mortgage is recognised. I am satisfied, that the nonsuit was correctly ordered, and that the plaintiff can take nothing by his motion.

Rule refused.

* Ante, p. 41. Jackson v. Willard.

† 1 vol. R. P. 481.