Farmers' Loan & Trust Co. v. Curtis , 1 Seld. Notes 7 ( 1852 )

Bill to foreclose a mortgage. The Holland Land Company, in January, 1838, conveyed large tracts of land in Genesee and other western counties of this state, and assigned contracts for the sale of, portions of such lands, to the plaintiffs. Among the contracts, was one held by the defendant for a lot occupied by him. He was notified of the conveyance, and that by paying a portion, and securing by his bond and mortgage the residue of the purchase price due upon his contract, he could have from the plaintiffs a conveyance of the land. On the 15th of January, 1839, he called at plaintiffs’ office at Buffalo, paid $78 toward the land, executed his bond, and the mortgage in suit, for the balance due on the contract, and left them with the clerk in the office. He received from the clerk a certificate that he had executed his bond and mortgage on the south part of lot 51, and was entitled to a deed for the same, on the return of the certificate to that office. He was informed that the deed could not then be executed; that it was necessary to send it to Hew York, and that it would require about two months to get it executed and returned to the office. The deed was executed and sent to the ofiice, but the defendant did not call for it. It remained in the office, and the defendant remained in the possession of the land, until after this suit for the foreclosure of the mortgage was commenced.

Redfield and LeRoy joined in the deed, adding their covenant of warranty. On their part, it was executed by Redfield for himself, and as attorney for LeRoy. Mo authority from LeRoy was produced. The defendant insisted that the bond and mortgage were without consideration, the deed not having been delivered. That the deed, not having been executed by LeRoy, was never ready for delivery. That the plaintiffs had no power under their charter to take the title to the lands, except in trust; and no trust being declared in the deed, they obtained no title, and therefore could give none.

Held, that whether the deed had been delivered so as to vest the title in the defendant or not, the mortgage was valid, and the defendant had such an interest in the land as entitled the plaintiff to sustain this suit to foreclose that interest.

That the objection, as to the want of power in Red-field to execute the deed for LeRoy, not having been made on the trial, was waived.

That the plaintiffs having power to receive the title to lánds for certain purposes, the court, in the absence of proof to the contrary, must presume that the conveyance to them was made in accordance with, and not in violation of, their corporate powers.

(S. C., 7 N. Y. 466.)