Fox v. Burns

By the Court, T. R. Strong, J. The mortgage of Calvin Tanner to Dennis Tanner, transferred to the latter the entire legal title to the cow, subject only to be defeated by payment of the mortgage debt according to the terms of the mortgage. (Butler v. Miller, 1 Comst. 496, 500. Coles v. Clark, 3 Cushing, 399, 401, 2.) Upon the default of the mortgagor in payment, the legal title of the mortgagee to the animal was perfect. Thenceforth the mortgagor had only an equity of redemption, which, on his death, descended to whoever represented him as to the property. (Burdick v. McVanner, 2 Denio, 170, and cases cited.) But as the cow was left in the possession of the mortgagor, although the mortgage was duly filed in the proper town clerk’s office, inasmuch as a true copy of the mortgage, with a statement exhibiting the interest of the mortgagee in the property, was not filed within thirty days next preceding the expiration of the term of one year from the filing of the mortgage, as required by law, the mortgage ceased to be valid, as against a subsequent purchaser in good faith, after the expiration of one year from the filing of the same. (Laws of 1833, p. 402, §§ 1, 3. Gregory v. Thomas, 20 Wend. 17.) The protection [679] given to purchasers, by this statute, is not limited to purchasers from the mortgagor: a purchaser from his vendee, or in case of his death, of the person or persons in whom the title to the property would have vested but for the mortgage, as his executors or administrators, and in certain cases his Avidow, is both by the letter and spirit of the statute entitled to its benefits. The language of the statute is that the mortgage “ shall cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees thereof in good faith,” &e. All subsequent purchasers in good faith, claiming the same title, whether from the mortgagor or one -to whom he has sold, or to Avhom it would have passed by operation of laAv, if the mortgage had not existed, are within the statute. See 1 R. S. 739, § 144, as to deeds of real estate. (Raynor v. Wilson, 6 Hill, 469,474.) In this case the mortgagor having had a family at his death, and no other coay than the one in question, and having left a widow, and there being no evidence that there were any minor children, the title to the cow, but for the mortgage, ayouM have passed to the widoAV under the statute. (2 R. S. 83, 84, §§ 9,10.) That statute provides that when a man having a family shall die, leaving a widoAV, or a minor child or children, certain property, and among other things1 one cow, shall not be deemed assets, but shall be included and stated in the inventory of the estate, without being appraised, and if there be a Avidow, and no minor child, it shall belong to the AvidoAY. The title of the widow, where there is no minor child, is absolute on the death of her husband, subject to the right of the executor or administrator to take possession of the property for the purpose of inventorying it. (Voelckner v. Hudson, 1 Sandf. 215.) She may sell immediately, subject as aforesaid. (Roosevelt v. Ellithorp, 10 Paige, 415. Hyde v. Stone, 7 Wend. 354.) Here there was no executor or administrator, and the plaintiff having purchased of the widow in good faith, after the expiration of the year, I entertain no doubt that by virtue thereof, and by operation of the statute, he acquired the title to the property. The withdraAval of this mortgage from the clerk’s office by the mortgagee, leaving the cow with the family of the mortgagor, [680] would have invalidated the mortgage as against a subsequent purchaser, &c. in good faith, if it had not before ceased to be valid to that extent. [Monroe General Term, September 6, 1852. It is claimed on the part of the appellant that the widow had no title to the cow, and that a bona fide purchaser succeeds only to the rights of his vendor. The same objection might be made if the mortgagor had sold before his death and after the year. She stood in his place, and had all his rights. But it is by operation of the statute that the purchaser obtains title, and not because the seller had a title. There was some conflict in the testimony, on the question whether the plaintiff had notice of the mortgage when he purchased, but the judgment of the justice, so far as that point is concerned, could not be reviewed by the county court, and can not be by this court. The judgment of the county court was right, and must be affirmed. Selden, Johnson and T. R. Sh-ong, Justices.]