Bennett v. Earll

21 Wend. 117

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.