Donovan v. Twist

85 A.D. 130, 83 N.Y.S. 76

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinion

Smith, J.:

The mortgage sought to be foreclosed was given by the mortgagor before he had acquired title to the premises described therein, and without any covenant of seizin or warranty. The rule of law is, I think, clearly established, that such a mortgage has no greater effect than a quitclaim deed, and is not operative upon a title subsequently acquired. (Jackson v. Littell, 56 N. Y. 108; Sparrow v. Kingman, 1 id. 256; M'Crackin v. Wright, 14 Johns. 193; Jackson v. Hubble, 1 Cow. 613.) It may be that if this mortgage had contained a warranty of title or covenants of seizin, its record would have been constructive notice to the defendant although its date of record was prior to the date of the deed to the mortgagor. (See Tefft v. Munson, 57 N. Y. 97.) In the cases cited upon the respondent’s brief the mortgages held valid as liens upon property subsequently acquired were all mortgages in which there was either a warranty or covenant by reason of which the mortgagor and his privies were estopped from denying the title which he had covenanted he possessed. In this mortgage, however, there is no covenant either of seizin or of warranty and no statement by which the mortgagor can be estopped from claiming that his title was subsequently acquired. Ho estoppel, therefore,, can be urged against this defendant grantee, who took at least the rights which the mortgagor had at the time of his grant.

The judgment should, therefore, be reversed.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.