Ayrault v. . Murphy

54 N.Y. 203

• Court: New York Court of Appeals
• Decided: June 5, 1873
• Status: Published

Opinion

Gray, O.

When Edward Murphy executed to the plaintiff the mortgage now sought to be enforced as against the title or lien of Savage, Murphy the mortgagor, had an apparent title to the mortgaged premises devised by deed, from Ms father, George Murphy, which in the' action brought by the defendant Savage, as receiver of the effects and property of the latter was adjudged fraudulent and void as to the creditors at whose instance he was appointed, and in pursuance of an order contained in that judgment the title to the premises became vested in Savage for all the purposes of his trust as receiver. The mortgage which the plaintiff seeks to enforce, was not recorded until two days after the commencement of that action, and notice of its pendency duly.filed in the office of the clerk of the county where the premises were situated; and hence the plaintiff became bound by the proceedings in that action (Code, § 132), in which the title of the mortgagor was as against Savage as receiver, and Mead and Holcomb judgment creditors of George Murphy, held to be fraudulent and void and in pursuance of an order contained in that judgment, Savage as receiver, had, before the commencement of this action, become invested with the title to the mortgaged premises. The court at Special Term was, therefore, right in holding that the title or lien of the defendant Savage as receiver, and of,Mead and Holcomb as judgment creditors, had by the proceedings in that action, become prior to and superior to the lien of the plaintiff’s mortgage ; or in other words, that the plaintiff by reason of his mortgage not having been recorded prior to the notice filed of the pendency of that action, became an incumbrancer subsequent to Savage, Mead and Holcomb. (Code, § 132.)

The plaintiff’s remedy, if he had any, was by an action to redeem the premises from the lien of Savage as receiver, or for the avails of the premises. (if they had been sold) exceeding the claims of the receiver thereon. The complaint in this action had nozsuch aspect, nor was the right of the plaintiff , to have relief of either character even suggested on the trial.

The judgment appealed from should be affirmed, with •costs.

All concur.

Judgment affirmed.