Bryan v. Butts

27 Barb. 503, 1858 N.Y. App. Div. LEXIS 86

Opinion

By the Court, Johnson, J.

The plaintiff’s title was not complete at the commencement of the action. Until all the proceedings to foreclose a mortgage have been completed, the title and seisin remain in the mortgagor. A mortgage is now nothing but a security for a debt, giving the mortgagee a specific lien only, upon the estate mortgaged. It conveys no title to the property. The interest of the mortgagee is a mere chattel interest. (Gardner v. Heartt, 3 Denio, 232. Calkins v. Calkins, 3 Barb. 305. Waring v. Smyth, 2 Barb. Ch. R. 135.) The title and seisin remain in the mortgagor, until foreclosure, and he is not divested of his title until all the steps required by statute have been complied with, where such foreclosure is by advertisement and sale under the statute. There is no transfer of title until all the necessary affidavits have been made and recorded. The affidavits, when made and recorded, constitute the evidence which the statute prescribes, and if they do not effect, they at least complete the transfer of title, which is incomplete until then. But I think it has been correctly held, that the recorded affidavits operate as the statutory transfer of title. (Arnot v. McClure, 4 Denio, 41. Layman v. Whiting, 20 Barb. 559.)

[Cayuga General Term, June 7, 1858.

Welles, Smith and Johnson, Justices.]

The precise point here involved was determined in the case last cited, which we understand has been affirmed at a general term in the eighth district. The nonsuit was therefore properly granted, and a new trial must be denied.