Freeman v. Schroeder
New York Supreme Court
APPEAL from an order made at a special term, settling the rights and priorities of the several claimants to surplus moneys arising from the sale of mortgaged premises, under a judgment of foreclosure. There were two mortgages executed by John E. Schroeder upon the same premises ; one given to Eoss, under which Mallory claimed, which was recorded June 8th, 1861; and one to Stevens, under which Freeman, the plaintiff, claimed which was recorded two days later.
Read the full summary
APPEAL from an order made at a special term, settling the rights and priorities of the several claimants to surplus moneys arising from the sale of mortgaged premises, under a judgment of foreclosure. There were two mortgages executed by John E. Schroeder upon the same premises ; one given to Eoss, under which Mallory claimed, which was recorded June 8th, 1861; and one to Stevens, under which Freeman, the plaintiff, claimed which was recorded two days later. The time of the actual delivery of neither of these mortgages was proven. The court decided that Mallory was entitled to a priority in…
1Opinion of the CourtLeonard, P. J.
The mortgage first recorded is presumptively the prior lien, and entitled to the surplus in question. The burden is, therefore, upon the holder of the junior mortgage to overcome this presumption of law.
The date of the acknowledgment is not, standing by itself, evidence of a delivery of the mortgage. The record is evidence of delivery in a greater degree, because the instrument is not then in the possession of the mortgagor; but even the record is not conclusive evidence of a delivery. The mortgage may have been recorded conditionally, to become operative, perhaps, when the consideration "has…
2Cited by9 opinions
- Loewen v. ForseeSupreme Court of Missouri · 1897
- Corbin v. KincaidSupreme Court of Kansas · 1885
- Collier v. . MillerNew York Court of Appeals · 1893
- Peabody v. RobertsNew York Supreme Court · 1866
- Collier v. MillerNew York Supreme Court · 1891
4 more not listed; retrieve them via the Exa API.