Frost v. Peacock

The Vice-Chancellor : The deed—afterwards mutilated—from Peacock and wife to Sally Betts, dated October the fifth, one thousand eight hundred and thirty-one and acknowledged on that day before Judge Hegeman, is to be regarded as an executed and delivered deed : Schrugham v. Wood, 15 Wend. R. 545. It is to be allowed the same effect as between the grantors and grantee as if it had always been in the actual possession and keeping of the grantee. It is in vain, therefore, for Mrs. Peacock, although she be now a widow, to claim any rights of dower in the property, for she united with her husband in thus conveying. But, if that deed had not been made, it would be doubtful whether she could claim dower in the surplus arising from the sale in foreclosure, inasmuch as her husband was living when the decree was made and when the sale took place and for a considerable time afterwards : Titus v. Nelson, [696] 5 J. C. R. 452 ; and see Hawley v. Bradford, 9 Paige’s C. R. 200. I think, with the master, that her dower is cut off entirely. Then, how stands the case as between Mrs. Sally Betts, the grantor under that deed and the other parties who claim the surplus % By not recording the deed and by leaving Peacock in possession of the land, exercising all acts of ownership as if he were still the real owner, she has lost all right to interfere with those who have taken any subsequent deed or mortgage from Peacock in good faith and for valuable consideration, trusting to his original title and apparent ownership: 1 R. S. 756, § 1, 37. William Weeks and Willett Weeks, with their mortgage of the first day of May one thousand eight hundred and forty and duly recorded long before the deed to Mrs. Betts was recorded, stand in the light of bona fide purchasers for valuable consideration and are entitled to priority and preference over Mrs. Betts with respect to this surplus. That their mortgage was taken for a precedent debt and not for money advanced at the time makes no difference in respect to its being a valuable consideration. In addition, they parted with a right of action for two years, having allowed two years on the bond and mortgage for paying the debt. The remaining question is between the Messrs. Weeks and Jarvis Frost, who claims one hundred and eighty dollars out of the surplus to reimburse him that amount of money paid for one acre of the premises sold under his decree, of which he had previously acquired the absolute estate by purchase. He was under no necessity to allow that acre óf land to be sold. He might have had it exempt from the sale. The most that he can claim to be returned to him out of the proceeds is as much as it may be fairly supposed the acre sold for in proportion to the other land. In justice and equity he can claim no more; and what this acre has contributed to the sale cannot, I consider, be put down at more than eighty dollars. This sum Mr. Frost may be allowed; and the master’s report is considered as modified accordingly. The exceptions taken by the defendants to the master’s report are overruled, except as to the allowance of one hun [697] dred and eighty dollars reported to Mr. Frost, which must be reduced to eighty dollars. In all other respects the re- , Í , . , „ port is to stand confirmed. The master’s costs on the reference are to be paid out of the surplus. The eighty dollars to Mr. Frost and the residue to William and Willett Weeks on account of their mortgage debt and all parties must be left to bear their own costs on the reference and of this hearing.