Gibson v. Thomas
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, The. Ulster, and Delaware Railroad Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 29th day of December, 1902, upon the decision of the court, rendered after a trial at the Delaware Special Term, directing a foreclosure and sale of mortgaged premises.
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Appeal by the defendants, The. Ulster, and Delaware Railroad Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 29th day of December, 1902, upon the decision of the court, rendered after a trial at the Delaware Special Term, directing a foreclosure and sale of mortgaged premises. George A. Thomas in 1868 executed a bond and mortgage to F. R. Gilbert upon certain lands in Delaware county. Thomas sold and conveyed to the Delaware and Otsego Railroad Company a strip of land from such mortgaged…
1Opinion of the CourtParker, P. J.
It is clear that, but for the Recording Act, the plaintiff would have taken no greater rights in the mortgage than his assignor had, and that any defense which Thomas, the mortgagor, and his grantee would have against a foreclosure by her could be set up as against him. But the question is whether, under the Recording Act (1 R. S. 756, § 1, revised by Real Prop. Law [Laws of 1896, chap. 547], § 241), the rights- acquired through the release have not been lost by the prior recording of the subsequent assignment. In the case of Baker v. Thomas (61 Hun, 17) this precise -question was' decided…
2Cases cited2 opinions
- Mutual Life Ins. Co. of New York v. . DakeNew York Court of Appeals · 1881
- Briggs v. ThompsonNew York Supreme Court · 1895