Hatch v. Morris

3 Edw. Ch. 313, 1839 N.Y. LEXIS 330, 1839 N.Y. Misc. LEXIS 35

• Court: New York Court of Chancery
• Decided: April 22, 1839
• Status: Published

Opinion

The Vice-Chancellor :

Although the mortgage executed by the wife alone, without her husband, was informal and invalid as a legal instrument, yet, being intended to secure a portion of the purchase money upon a sale and conveyance to the wife, it may be upheld in equity as creating an equitable lien. Indeed, in equity there is a lien for unpaid purchase money as between vendor and vendee and all subsequent purchasers and mortgagees with notice. Here, the defendant Russell purchased with notice; and accepted a conveyance expressly subject to the mortgage which the wife had intended to create; thereby recognizing it as a mortgage or, at all events, as a lien or charge upon the premises for so much money. He cannot now be permitted to gainsay it. His demurrer to the bill must be overruled, with costs; but he may have twenty days to answer the bill.