Fort v. Burch
New York Supreme Court
Ejectment, tried at the Washington circuit, in October, 1844, before Willard, Cir. J. William Burch was the source from which both parties claimed title.
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Ejectment, tried at the Washington circuit, in October, 1844, before Willard, Cir. J. William Burch was the source from which both parties claimed title. The plaintiff’s title was as follows: 1. A mortgage from William Burch to Lewis Fort, dated in April, 1838, 'the day was blank,) and recorded on the 13th day of that month, in Washington county, in which the land was situate; 2. An assignment of the mortgage by the mortgagee to Jarvis P. Randall, dated March 5, 1840, but which had not been recorded ; 3. An enrolled decree in the court of chancery in a suit for the foreclosure of the…
1Opinion of the CourtMcKissock, J.
The decision of this cause depends on the question whether the defendant should have been permitted to show that Lewis Fort, at the time he took his mortgage, had notice of the prior mortgage to Burr, without bringing that notice home to the knowledge of Randall the assignee of Lewis Fort. Such notice to Fort would destroy his claim to be considered a bona fide purchaser, and therefore his younger re*191corded mortgage could not have preference to the older unrecorded mortgage. To have that advantage the younger must both be taken in good faith, and be first recorded. This was always the rule…
2Cases cited5 opinions
- Jackson ex dem. Merrick v. PostNew York Supreme Court · 1836
- Varick v. BriggsNew York Court of Chancery · 1837
- Ledyard v. ButlerNew York Court of Chancery · 1841
- Jackson, ex dem. Humphrey v. GivenNew York Supreme Court · 1811
- Hawley v. Bennett.New York Court of Chancery · 1835
3Cited by21 opinions
- Bush v. . LathropNew York Court of Appeals · 1860
- Schafer v. . ReillyNew York Court of Appeals · 1872
- Fallass v. PierceWisconsin Supreme Court · 1872
- Stevens v. HamptonSupreme Court of Missouri · 1870
- Decker v. . BoiceNew York Court of Appeals · 1880
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