Winston v. Kilpatrick

5 Daly 524

• Court: New York Court of Common Pleas
• Decided: February 15, 1875
• Status: Published

Opinion

Per Curiam.

*

The mortgage in question was given as security for money loaned and to be expended in the improvement of the premises therein described. It constituted a valid and subsisting lien thereon, as against all subsequent purchasers and incumbrancers. Prior to the execution and delivery of said mortgage, Kilpatrick’s interest in the land was inchoate.

The lien sought to be acquired by him was purely statutory, and until the certificate of shares had been duly issued to him, in pursuance of § 5 of the act of May 9th, 1868 (L. 1868, e. 762), no lien, could attach in his favor upon the lands of the association.

It is admitted that no such certificate was issued before the delivery of said mortgage.

There was no notice within the recording act of the existence of said alleged lien, and no actual notice thereof could be inferred from the mere payment of the subscriptions, to the prejudice of the respective bondholders for whom plaintiffs acted as trustees.

For these reasons, we think the judgment should be affirmed.

Judgment affirmed.

Present, Daly, Ch. J., Larremore and J. F. Daly, JJ.