Reed v. Gannon

3 Daly 414

Opinion

By the Court.

Footnotes

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Robinson, J.

The controversy in this action is as to the title to certain articles of personal property, transferred by the defendant Beed to the plaintiff Nunez on April 27th, 1867, under and by virtue of certain articles of separation executed triparte between Beed and his wife Mary (one of the plaintiffs) and the plaintiff Nunez, in which Nunez became trustee for the benefit of the wife, and assumed obligations to and with her husband, in respect to her future conduct and separate maintainance. He was undoubtedly a bona fide purchaser of the property in question (as trustee for Mrs. Beed), with the superadded covenants and obligations assumed1 by him personally, on her behalf, and no notice of the claim to the property made and attempted to be asserted by the defendant Gannon, is shown to have been given him prior, to his acquiring title and incurring such obligations. Gannon claims' the property under a chattel mortgage executed to him by the defendant Beed, dated in February, 1867, to secure the loan of $1,500 which he made to Beed; but such mortgage was not filed in the office of the Begister of the city and county of New Tork, where Beed resided, until after the defendant, Nunez, had acquired title to the property, under the articles of separation, and had obtained and held possession of it, under such title. Under such circumstances, there can be no question as to the superior legal title of Hunez, as trustee, under the articles of separation as a purchaser without notice, unless the clause therein that Reed, the assignor, would “ within ninety days from the date hereof pay off and discharge any lien, mortgage or incumbrance ” upon the property conveyed to the trustee, in itself charged him with notice of Gannon’s unrecorded or unfiled mortgage. Ho actual notice to Hunez of its existence is shown on the part of the defendant, and there is no rule of law that requires the plaintiff in such case to prove a negative.

Proof of the actual payment or the incurring of such obligation as constitutes the consideration of the subsequent conveyance, without evidence of actual or constructive notice of a prior right, renders the party so advancing the consideration money or incurring the obligation, z.hona fide purchaser.

The absolute sale and conveyance of personal property by one having possession, not only affirms but warrants a perfect title (Mednia v. Stoughton, 1 Salk. 210; Scranton v. Clark, 39 N. Y. 223.), and the provision in the assignment or transfer above quoted, referring to incumbrances to be discharged by the assignor, was general in its terms and merely precautionary. It made no special designation of any of the incumbrances of the character stated, and provided merely for the contingency of their possible existence. It in itself contained no notice of the existence of Gannon’s mortgage. Under the -proofs offered, Hunez, the trustee, was a iona fide purchaser, without notice of that mortgage.

As to the objection, that this action was not cognizable by this court, acting as a Court of Equity, it appears it was brought to secure the peaceable enjoyment by the plaintiffs of the rights conferred on them by the articles of separation.

Ho objection was taken, by the answer or on the trial, that the case was one relating solely to personal property and a mere premeditated trespass, but the title to the property and the right to its possession and enjoyment were litigated on the trial, without question as to whether or not the action was one of purely equitable cognizance; such objection not being taken while the action was pending, was waived, (Truscott v. King, 6 N. Y. 147; Grandin, v. Le Roy, 2 Paige, 509; Le Roy v. Platt, 4 Paige, 77; Bk. of Utica v. Utica, 4 id. 399), and can not be raised on the appeal.

The opinion rendered by the court below fully sustained this claim, and the judgment was, in all respects correct, and should be affirmed with costs.

Judgment affirmed.

Present—Robinson, Loew and Larremore, JJ.