Bennett v. Earll

New York Supreme Court

Bennett v. Earll

21 Wend. 117

CourtNew York Supreme Court

DecidedMay 15, 1839

StatusPublished

Cited by3 cases

This text of 21 Wend. 117 (Bennett v. Earll) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bennett v. Earll, 21 Wend. 117 (N.Y. Super. Ct. 1839).

Pincite

Opinion

By the Court,

Nelson, Ch. J.

The charge of the court that as both parties were in fault in not taking possession of the property at the time of the execution of the instruments, the defendant was entitled to priority, as the most vigilant, was erroneous. The statute, 2 R. S. 136, § 5, made the bill of sale absolutely fraudulent as against “ subsequent purchasers in good faith which term includes the mortgagee, he being a purchaser sub modo, unless the continued possession by the vendor was sufficiently explained, which is not pretended to have been done here. As regards this prior sale, then, the mortgagee was not under the necessity of taking possession of the .property, this being only important in respect to creditors and subsequent purchasers. It is enough in such cases, that the transaction be bona fide. Gregory v. Thomas, 20 Wendell, 17.

Judgment reversed; venire de nova.

Free access — add to your briefcase to read the full text and ask questions with AI

By the Court,

Nelson, Ch. J.

The charge of the court that as both parties were in fault in not taking possession of the property at the time of the execution of the instruments, the defendant was entitled to priority, as the most vigilant, was erroneous. The statute, 2 R. S. 136, § 5, made the bill of sale absolutely fraudulent as against “ subsequent purchasers in good faith which term includes the mortgagee, he being a purchaser sub modo, unless the continued possession by the vendor was sufficiently explained, which is not pretended to have been done here. As regards this prior sale, then, the mortgagee was not under the necessity of taking possession of the .property, this being only important in respect to creditors and subsequent purchasers. It is enough in such cases, that the transaction be bona fide. Gregory v. Thomas, 20 Wendell, 17.

Judgment reversed; venire de nova.

Cite This Page — Counsel Stack

Bluebook (online)

21 Wend. 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-earll-nysupct-1839.

Opinion

Related

Cite This Page — Counsel Stack