Fern v. Osterhout
Appellate Division of the Supreme Court of the State of New York
Appeal by tbe plaintiff, Elizabeth Fern, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Otsego on the 31st day of May, 1895, upon the report of a referee dismissing the plaintiff’s complaint.
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Appeal by tbe plaintiff, Elizabeth Fern, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Otsego on the 31st day of May, 1895, upon the report of a referee dismissing the plaintiff’s complaint. In the year 1852, one James Fern died intestate in the town of Milford, Otsego county, New York, seized and possessed of the real estate described in this action, and leaving him surviving George Fern, James Fern and Andrew Fern, his only children and heirs at law. In September, 1875, Andrew Fern and his wife conveyed their interest in…
1Opinion of the Court
Herrick, J.:
The theory of the peculiar and superior lien of a purchase-money mortgage is, first, that it is equitable that the premises purchased should be the primary security for the payment of its own purchase price; and, second, that the deed of conveyance and the mortgage to secure the purchase price are each regarded as part and parcel of the same transaction, and that- no interval of time elapses between the giving of the deed and the giving of the mortgage during which any other claim or right can intervene and attach to the property. Therefore, it follows that the lien of a…
2Cases cited2 opinions
- Lewis v. . SmithNew York Court of Appeals · 1854
- Merchants' Bank v. . ThomsonNew York Court of Appeals · 1873
3Cited by7 opinions
- Tax Lien Co. v. . SchultzeNew York Court of Appeals · 1914
- Jasper v. . RozinskiNew York Court of Appeals · 1920
- Anderson v. McNeelyAppellate Division of the Supreme Court of the State of New York · 1907
- Leland v. BrownNew York Supreme Court · 1930
- Clark v. FullerNew York Supreme Court · 1930
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