Reynolds v. Park , 5 Lans. 149 ( 1871 )

Mullin, P. J.

Mrs. Edgarton got title to the Hunter street property in June, 1856. In October of the same year, she and her husband mortgaged the same for the sum of $1,000 to Calvin T. Chamberlain. This mortgage was recorded on the day of its date.

The suit brought by Knapp to set aside the conveyances made by Mrs. E., as fraudulent as against the creditors of her husband, was commenced in July, 1859, and judgment entered therein in September of that year. To that action Edgarton and wife were the only defendants.

It follows that when Knapp commenced his action, Chamberlain had a valid lien on the Hunter street property, and it was so far as we are informed the only lien thereon. This lien was not removed or postponed by the judgment in the Knapp suit for several reasons :

1st. Only one of Knapp’s judgments had been recovered when the mortgage was given. The other was docketed in May, 1859. The older judgment did not become a lien on the Hunter street property,.as the title thereto was not in Edgarton at any time. Chamberlain held the fee and conveyed at the request of E. to his wife. It follows that the mortgage became a valid lien on the Hunter street property before the commencement of the Knapp suit.

2d. Although this mortgage was on record when Knapp’s suit was commenced, Chamberlain, the mortgagee, was not made a party, and was not bound by the proceedings in that suit. Knapp could not, by a judgment in that action, acquire a lien prior to Chamberlain’s mortgage without making him a party defendant.

3d. It is not pretended that the mortgage of Chamberlain was not given in good faith, and for a valuable consideration.

I repeat, therefore, the proposition that the lien of Chamberlain’s mortgage has never been removed or postponed to any or all of the Knapp judgments.

As between Mrs. E. and the creditors of her husband, the conveyance to her of the Hunter street property may have been fraudulent, yet she could sell to an innocent purchaser or mortgage to an innocent mortgagee that property, not having notice of the fraud, and the title or lien thus acquired would not be impaired by a subsequent judgment declaring fraudulent and void the-conveyance to her.

If this is a correct exposition of the rights of the parties, the Knapp judgment binds only the Sophia street property. And that property, in whose hands soever it maybe, must be applied to the satisfaction of that judgment. The defendant is now the owner of it, and it is alleged in the complaint that he threatens by virtue thereof to sell the Hunter street property. If it is not liable to be sold upon that judgment, the plaintiff is entitled to have his property relieved from that burden. It is a cloud on plaintiff’s title, and should be removed.

The judgment of the Special Term must be reversed and a new trial ordered, costs to abide the event.

Judgment reversed.