Jackson ex dem. Beebe v. Austin

15 Johns. 477

• Court: New York Supreme Court
• Decided: October 15, 1818
• Status: Published

Opinion

Per Curiam.

The question of priority will depend on the statute, (1 N. R. L. 375.) which declares that whenever lands are sold and conveyed, and a mortgage is given by the purchaser, at the same time, to secure the .payment of the purchase money, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser. The mortgage in this case comes within the letter of the act. It was executed by the purchaser, Van Deusen, to secure the purchase money, and was given at the same time with the deed, although not given to Cooper, from whom Van Deusen derived title. But this cannot vary the principle upon which the statute appears to be founded. The lessor of the plaintiff advanced the purchase money, and took the mortgage to himself. The act probably contemplated cases where the mortgage was given to the seller of the land. But the words of the act are not restricted to such cases, and a just and fair construction

will warrant its application to the present case. The plaintiff is, accordingly, entitled to judgment.

Judgment for the plaintiff,

(a) & r 7

Vide Stow v. Tifft, ante, p. 458. Clark v. Munroe, 14 Mass. Rep. 351.