Miner v. Judson

9 N.Y. Sup. Ct. 441

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Gilbert, J.:

When this case was before the court on a previous appeal, the judgment against the defendant was reversed, and a new trial granted, on the ground that when the defendant (the assured) sold and alienated the property insured, the policy became void, and therefore he became entitled to a return of the note in suit. It had not then appeared, that, upon such sale of the subject insured, the defendant took back a chattel mortgage, to secure payment of the price. Upon the last trial, that fact was proved, and the referee gave such effect to it, as again to render judgment against the defendant. We think the referee erred. The legal effect of the sale by the defendant, was to vest the title in the purchaser. A complete alienation was then made. The chattel mortgage, given to the defendant by the purchaser, operated as a transfer of the title, subject to be defeated on payment of the sum it was given to secure. The title of the defendant under the mortgage, would become absolute only upon default in the performance of the condition.

* The mortgagor held the equitable title to the property, and that would continue in him, until barred by a sale by judicial decree, or by lapse of time.† The principle asserted in the case of Savage v. Howard Ins. Co., ‡ is decisive of the effect of the transaction referred to, and requires us to reverse the judgment appealed from.

Judgment reversed and a new trial granted, with costs to abide the event.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial granted, costs to abide event.

Parshall v. Eggert, 54 N. Y., 18.

Aikins v. Hosley, 3 N. Y. Sup. Ct. R., 326; Porter v. Parmley, 52 N. Y., 188, and authorities cited.

52 N. Y., 502.