Van Alstine v. Matthews , 157 N.Y.S. 706 ( 1916 )

Woodward, J.:

Eleanor M. Hubbell made, executed and delivered her bond and mortgage, upon certain premises in Sullivan county, on the TTth day of June, 1910, to the plaintiff, and the present action is brought to foreclose such mortgage. On the 29th day of March, 1912, the plaintiff delivered a satisfaction piece for said mortgage to the defendant Eleanor M. Hubbell, who gave her promissory note in connection With the transaction, though it appears that said note was never paid. On the 18th day of January, 1912, prior to the giving of the satisfaction piece, Eleanor M. Hubbell made and delivered a deed of the premises involved in this litigation to her aunt, the defendant, appellant, Jennie E. Matthews, such deed having been recorded on the 19th day of January, 1912. This deed is alleged to have been given in consideration of an indebtedness of $2,000 due to the said aunt, Jennie E. Matthews, and the latter subsequently paid off certain liens upon the premises. The complaint alleges that the satisfaction piece, delivered to Eleanor M. Hubbell, was procured from the plaintiff through deceit and fraud, and a jury impaneled by the court has found in favor of the plaintiff upon this issue, and the judgment of the court grants foreclosure, holding the satisfaction piece null and void by reason of such fratid. The result is that the plaintiff has judgment of foreclosure, and the defendant Jennie E. Matthews holds the title subject to the mortgage and the judgment of foreclosure. The defendant Jennie E. Matthews appeals from the judgment.

We are of the opinion that the verdict of the jury and the decision of the court is fully justified by the evidence; that the defendant Jennie E. Matthews took no rights superior to those of the plaintiff, but in subordination to his rights. At the time the deed was made and recorded the plaintiff’s mortgage was on record in the clerk’s office of Sullivan county, and if she took title and made payments on account of the premises she did so .at her own risk, not at the risk of the plaintiff. The subsequent granting of a satisfaction piece, induced by fraudulent representations on the part of the defendant Hubbell, could not operate to increase the rights of the defendant Jennie E. Matthews, and no one else appeals from the judgment.

The judgment appealed from should be affirmed, with costs.

Judgment unanimously affirmed, with costs.