Peabody v. Roberts
New York Supreme Court
1YEIS action was brought to foreclose a mortgage given by . Jared D. Howe to the plaintiff, on the 14th day of October, 1836, to secure the payment of $440 and interest annually, according to the condition of a bond at the same time executed by Howe and delivered to the plaintiff.
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1YEIS action was brought to foreclose a mortgage given by . Jared D. Howe to the plaintiff, on the 14th day of October, 1836, to secure the payment of $440 and interest annually, according to the condition of a bond at the same time executed by Howe and delivered to the plaintiff. By the condition of the bond, the principal sum secured became due and payable on the 1st of January, 1838. The premises described in the mortgage were situate in Genesee county, and the mortgage was duly recorded in the office of the clerk of that county, on the 16th of June, 1837. This action was commenced on the…
1Opinion of the CourtDaniels, J.
Although the mortgage in suit was in fact the first incumbrance on the premises in question, at the time when the mortgage under which the defendants derive their title was executed, that priority was presumptively lost by the omission to record it until after the second mortgage had been recorded. (Freeman v. Schroeder, 43 Barb. 618.) And .that presumption must prevail against the plaintiff’s mortgage, unless it can be overcome by evidence, in the manner sanctioned by law. (Butler v. Viele, 44 Barb. 166.) And as no such evidence has been given in this case, his mortgage must be deemed to be,…
2Cases cited11 opinions
- Kortright v. . CadyNew York Court of Appeals · 1860
- Campbell v. . HallNew York Court of Appeals · 1858
- Vanderkemp v. SheltonNew York Court of Chancery · 1844
- Benedict v. Gilman & CouchNew York Court of Chancery · 1833
- Mickles v. . Dillaye and OthersNew York Court of Appeals · 1858
6 more not listed; retrieve them via the Exa API.
3Cited by10 opinions
- Moulton v. . CornishNew York Court of Appeals · 1893
- Carpentier v. BrenhamCalifornia Supreme Court · 1870
- DeLashmutt v. SellwoodOregon Supreme Court · 1882
- City of Springfield Ex Rel. Southern Missouri Trust Co. v. RansdellSupreme Court of Missouri · 1924
- Hubbell v. SibleyNew York Supreme Court · 1871
5 more not listed; retrieve them via the Exa API.