Heyder v. Excelsior Building Loan Ass'n, No. 2
Supreme Court of New Jersey
1. The lien of a mortgage duly registered will not be lost by a cancellation ■ of record effected through accident, or the mistake or fraud of third persons. 2. If cancellation be the result of the negligence of the owner, he will not •be permitted to establish his lien against subsequent bona fide purchasers or .mortgagees acting upon the faith of such cancellation of. record. 3. Permitting the custody of a mortgage to be in the mortgagor, held to be ¡proof of negligence in…
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1. The lien of a mortgage duly registered will not be lost by a cancellation ■ of record effected through accident, or the mistake or fraud of third persons. 2. If cancellation be the result of the negligence of the owner, he will not •be permitted to establish his lien against subsequent bona fide purchasers or .mortgagees acting upon the faith of such cancellation of. record. 3. Permitting the custody of a mortgage to be in the mortgagor, held to be ¡proof of negligence in the mortgagee, such as precludes restoration of the ■mortgage canceled through fraud of the mortgagor, against a…
1Opinion of the Court
The opinion of the court was delivered by
Knapp, J.
The learned master who decided this cause reached the conclusion on the evidence that the purchaser of the premises, and not the mortgagee, should bear the loss incident to the fraudulent cancellation of the mortgage made upon the record prior to the purchase, on the faith of which cancellation the buyer parted with the whole purchase-money, believing ⅛⅜- property to be unencumbered. After a careful review of the case, I am led to an opposite result. I am fully impressed with the importance of securing due protection to the holders of mortgage…
2Cited by8 opinions
- Marden v. . DorthyNew York Court of Appeals · 1899
- Abruzzese v. OestrichNew Jersey Superior Court Appellate Division · 1946
- Sunrise Sav. & Loan Ass'n v. GiannettiDistrict Court of Appeal of Florida · 1988
- Scardone v. SozziNew Jersey Court of Chancery · 1931
- Hofstetter v. BernettNew Jersey Court of Chancery · 1935
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