Palmer v. Miller

New York Supreme Court

Palmer v. Miller

25 Barb. 399, 1857 N.Y. App. Div. LEXIS 133

CourtNew York Supreme Court

DecidedSeptember 14, 1857

StatusPublished

Cited by8 cases

This text of 25 Barb. 399 (Palmer v. Miller) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Palmer v. Miller, 25 Barb. 399, 1857 N.Y. App. Div. LEXIS 133 (N.Y. Super. Ct. 1857).

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Opinion

By the Court, Mitchell, P. J.

A mortgage is an executed contract, and gives a present interest in or to the land, by way of lien upon it. It is a deed, to be void on a certain event. Like other executed contracts of an infant, it is valid until some act is done by him to avoid it.' In this case the infant did no such act. The deed to Strong, the trustee, did not refer to the mortgages; it simply “ conveyed all the undivided moiety of all those certain lots” in question. The grantee under such a deed would take subject to any prior mortgages. Such would be its intent, when the contrary was not expressed. It is impossible, then, to infer that this deed repudiated, or was intended to repudiate, the mortgage to the plaintiff, j The subsequent acknowledgment of the mortgage was a ratification of it, and related back, in its effect, to the first delivery, and affected all intermediate persons except purchasers for a new and valuable consideration. The trustee was not such a purchaser. There was no valuable consideration for the deed to him. (See Stafford v. Roof, 9 Cowen, 626; Bigelow v. Grannis, 2 Hill, 120; Lathrop v. Furguson, 22 Wend. 116; Bool v. Mix, 17 id. 119 ; The Eagle Fire Co. v. Lent, 6 Paige, 635; Dominick v. Michael, 4 Sand. 418.)

The judgment should be affirmed, with costs.

Mitchell, Roosevelt and Peabody, Justices.]

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By the Court, Mitchell, P. J.

A mortgage is an executed contract, and gives a present interest in or to the land, by way of lien upon it. It is a deed, to be void on a certain event. Like other executed contracts of an infant, it is valid until some act is done by him to avoid it.' In this case the infant did no such act. The deed to Strong, the trustee, did not refer to the mortgages; it simply “ conveyed all the undivided moiety of all those certain lots” in question. The grantee under such a deed would take subject to any prior mortgages. Such would be its intent, when the contrary was not expressed. It is impossible, then, to infer that this deed repudiated, or was intended to repudiate, the mortgage to the plaintiff, j The subsequent acknowledgment of the mortgage was a ratification of it, and related back, in its effect, to the first delivery, and affected all intermediate persons except purchasers for a new and valuable consideration. The trustee was not such a purchaser. There was no valuable consideration for the deed to him. (See Stafford v. Roof, 9 Cowen, 626; Bigelow v. Grannis, 2 Hill, 120; Lathrop v. Furguson, 22 Wend. 116; Bool v. Mix, 17 id. 119 ; The Eagle Fire Co. v. Lent, 6 Paige, 635; Dominick v. Michael, 4 Sand. 418.)

The judgment should be affirmed, with costs.

Mitchell, Roosevelt and Peabody, Justices.]

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25 Barb. 399, 1857 N.Y. App. Div. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmer-v-miller-nysupct-1857.

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