Dusenbury v. Hulbert

2 Thomp. & Cook 177

• Court: New York Supreme Court
• Decided: November 15, 1873
• Status: Published

Opinion

P. Potter, J.

I place my decision of this case upon this ground, that both parties, being bona fide mortgagees, the mortgages taking effect at the same instant of time upon the estate, and the case not coming within the provisions of the recording act, inasmuch as Seymour was not a subsequent purchaser, the equities of the parties were equal; and neither being charged with actual or constructive notice of the other’s lien, the preference is to be given to the first recorded mortgage, on account of the greater diligence by Seymour.

But if the time of delivery of the mortgage to Seymour, instead of its date, is to be regarded as the time when it took effect as a purchase, then Seymour was a subsequent purchaser, and is entitled to priority under the recording act.

Miller, P. J., and Parker, J., concurred.

Judgment affirmed.