109 N.Y. 448, Purdy v. Coar

Citation:109 N.Y. 448
Party Name:ELIJAH F. PURDY et al., Respondents, v. MARY JANE COAR, Impleaded, etc., Appellant.
Case Date:June 05, 1888
Court:New York Court of Appeals
 
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Page 448

109 N.Y. 448

ELIJAH F. PURDY et al., Respondents,

v.

MARY JANE COAR, Impleaded, etc., Appellant.

New York Court of Appeal

June 5, 1888

Argued April 18, 1888.

Page 449

COUNSEL

John H. Corwin for appellant.

Page 450

S.W. Rosendale for respondents.

FINCH, J.

This is a case in which dates are of importance. On September 8, 1884, one John Coar was the owner of the premises now in controversy. On that day he made and executed to one Frederick C. Walker a bond and mortgage to secure $7, 000 and interest. Two days later, and on September tenth, Coar conveyed the property to Marshall and the latter to Mrs. Coar, the present defendant. In the absence of any proof to the contrary, it must be presumed that these deeds were delivered at their date. (2 Greenl. on Ev. § 297; Van Rensselaer v. Vickery, 3 Lans. 59; Elsey v. Metcalf, 1 Denio, 323; Harris v. Norton, 16 Barb. 264.) On September twelfth the mortgage to Walker was recorded. On

Page 451

September fourteenth, as appears by its date, Coar signed a certificate that the Walker mortgage was a good and valid security and that there was no defense to it. He had then ceased to be the owner of the property and had no authority from his wife, who was owner, to make such representation. On September twenty-third the deed to Mrs. Coar was put on record, and thereafter and while the record title was in her, and on the fourteenth of October, the Walker mortgage was assigned to the present plaintiffs, who bought it in reliance upon Coar's certificate. That assignment was recorded October fifteenth. For default of payment this action was commenced to foreclose the mortgage. Mrs. Coar defended, alleging that no consideration passed from Walker; that she signed the mortgage supposing that the consideration named had been paid; that the plaintiffs gave no consideration for the assignment; and that the mortgage was void for want of consideration. Upon the trial she sought to prove this defense in various ways, but all her efforts were baffled by the ruling of the court that she was estopped by her husband's certificate made when he had ceased to have any interest in the land, and when she alone had become the owner. She called her husband as a witness and asked him to state 'all the facts concerning the inception and continuance of the mortgage.' The question was objected to as incompetent and...

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