New York County NyArchives Court.....Wilson, John Vs. George Drake Smith 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

JOHN A. WILSON, Respondent, v. GEORGE DRAKE SMITH & COMPANY (Limited), and 
GEORGE DRAKE SMITH, Appellants, Impleaded, etc.

Validity of a mortgage — given to the owner of land, who subsequently, and a 
year thereafter, conveys the property to the mortgagor, with covenants of 
seizen, against incumbrances and of warranty — as against judgment-creditors of 
the mortgagor.

Appeal by the defendants from a judgment recovered at the New York Special Term, 
and entered in the office of the clerk of the county of New York, August 11, 
1888.

The judgment recovered is for the foreclosure of a mortgage executed by the 
defendants, James A. Willoughby and Charles Willoughby, to the plaintiff, to 
secure the sum of $10,000, with interest. The property described in the mortgage 
was a certain factory, with the machinery and improvements contained therein, 
lying and being at Fordham, in the city and county of New York, and known and 
designated on a certain map of property at Fordham by Nos. 483 and 484, on the 
easterly side of Hoffman street, 183 feet south of Pelham avenue. The building 
is then stated to cover two lots, owned by John A. Willoughby, and the mortgage 
to be given to secure the payment of a part or a portion of the purchase-money 
for the premises and the machinery. The title to these two lots was in the 
plaintiff when the mortgage was executed and delivered to him, and after that 
time, and over a year subsequent to the record of the mortgage, the plaintiff 
executed and delivered to James A. Willoughby, one of the mortgagors, a 
conveyance of this property, and in the conveyance covenanted that he was 
lawfully seized of an absolute and indefeasible estate of inheritance in fee 
simple of the premises conveyed; and that the same were free and clear of 
incumbrances, grants, titles, charges, estates, judgments, taxes and 
assessments, and this was followed by a covenant for quiet possession.

The appellant, George Drake Smith & Company (Limited), advanced money to the 
mortgagors, for which judgments were confessed by them; and these judgments, 
under the circumstances, were relied upon as being prior liens upon the property 
to the plaintiffs mortgage. But it appeared by the proof that the agreement and 
understanding of the parties was that the plaintiff should convey this property 
to the mortgagors and receive the mortgage executed and delivered to him, as 
security for its purchase-price, and the advance of money made by him to them, 
and it was to carry out this understanding that both the mortgage and the deed 
were afterwards executed and delivered.

The court at General Term said: "When the mortgage was made the title of the 
plaintiff to the property was recognized and conceded in it. And while the 
language contained in the deed was very broad as to the title and incumbrances 
upon the property, it is not to be construed, and was not intended, to exclude 
or supersede this mortgage, which was given to secure their obligations to the 
plaintiff. These features of the case place it within the decision which was 
made in Judd v. Seekins (3 N Y. Sup. Ct. [T. & C], 266; affirmed, 62 N. Y., 
266), sustaining the validity of the mortgage."

[The balance of the opinion was taken up with the discussion of the weight of 
evidence on the subject of notice. — Rep.]

S. F. Kneeland, for the appellant.

James F. Higgins, for the respondent.

Opinion by Daniels, J.; Van Brunt, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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