Wilcox v. Drought
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Berry B. Simons and another, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of Hovember, 1901, as overrules said defendants’ exceptions to the report of a referee and confirms said report in all things as to the claim of Josephine O’Heil and directs the chamberlain of the city of Hew York to pay to the said Josephine.
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Appeal by the defendants, Berry B. Simons and another, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of Hovember, 1901, as overrules said defendants’ exceptions to the report of a referee and confirms said report in all things as to the claim of Josephine O’Heil and directs the chamberlain of the city of Hew York to pay to the said Josephine. O’Heil or her attorney a sum of money in his hands to the credit of a foreclosure action, in a proceeding instituted to obtain surplus…
1Opinion of the Court
Laughlin, J.:
The respondent claims that appellants are not “ subsequent purchasers in good faith and for a valuable consideration ” within the meaning of section 241 of the Real Property Law (Laws of 1896, chap. 547), and that her mortgage having been first delivered, although subsequently recorded, is the prior lien. The referee and Special Term have so held, and this is the important question presented by the appeal.
I-t is urged on the part of the respondent that there was no delivery of appellants’ mortgage as against the intervening rights of third, parties until it was received from the…
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