Swart v. Service
New York Supreme Court
This was an action of ejectment, tried at- the Saratoga circuit in May, 1837, before the Hon. John Willard, one of the circuit judges.
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This was an action of ejectment, tried at- the Saratoga circuit in May, 1837, before the Hon. John Willard, one of the circuit judges. The plaintiffs, the children of James Swart, deceased, who- was the only child and heir at law of Derick Swart, showed title by lease and release, bearing date 24th and 25th September, 1784, executed by John Guerdon to Derick Swart, conveying 68 acres of land, the premises in question : which instruments of lease and release were duly am knowledged by Guerdon on the sixth day of April, 1804. Guerdon, the releasor of the premises, .died in possession of the…
1Opinion of the Court
By the ■ Court,
Cowen, J.
The first offer made by the defendant had no dependence on privity of title between him and Guerdon. It was a simple offer to prove an outstanding title, by turning the conveyance by lease ,and release into a mortgage, and showing its extinction by payment. That would divest the title of Swart and of his grandchildren, the plaintiffs; - for payment extinguishes a mortgage at law as well as in equity. Jackson, ex dem. Rosevelt, v. Stackhouse, 1 Cowen, 122. But independent of that, if Swart were a mere mortgagee, neither he nor those claiming under him could recover. 2…
2Cases cited3 opinions
- Roach v. CosineNew York Supreme Court · 1832
- Morris v. MowattNew York Court of Chancery · 1831
- Stewart v. HutchinsNew York Supreme Court · 1835
3Cited by16 opinions
- Fairchild v. RasdallWisconsin Supreme Court · 1859
- Fuller v. ParrishMichigan Supreme Court · 1854
- Bank of Albion v. SmithNew York Supreme Court · 1858
- Jackson v. LodgeCalifornia Supreme Court · 1868
- Lee v. EvansCalifornia Supreme Court · 1857
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