Fox v. Queens County Sales Co.
| Decision Date | 20 May 1931 |
| Citation | 52 F.2d 794 |
| Parties | FOX v. QUEENS COUNTY SALES CO., Inc. |
| Court | U.S. District Court — Eastern District of New York |
M. Carl Levine, of New York City (David Morgulas, of New York City, of counsel), for plaintiff.
Charles E. Switzer, of Lynbrook, L. I., N. Y., for second mortgagee.
MacNeill & MacNeill, of Hempstead, N. Y., for Hempstead Bank.
Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Albert D. Smith, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.
Plaintiff, pursuant to section 3207 of the Revised Statutes (Title 26, § 136, USCA) after duly obtaining leave to do so, filed this bill in chancery, for a final determination of all claims to, or liens upon, the real estate in question.
Plaintiff is a first mortgagee. Her mortgage of $3,150 was made by the defendant Queens County Sales Company, March 31, 1927, and duly recorded April 7, 1927. She owns it by means of assignments also duly recorded. The second mortgage, to defendant Stark, for $3,500, was made May 17, 1927, and duly recorded May 20, 1927. This was also made by the defendant Queens County Sales Company.
About six months after plaintiff's mortgage was given and on September 29, 1927, the government filed a judgment against the property for $1,362.82 representing an unpaid income tax.
Both of the above mortgages therefore are prior, in date of filing, to said judgment.
There certainly can be no presumption that these mortgages were subterfuges to avoid paying the said tax. There is nothing to even indicate such a state of affairs.
While there is apparently very little law, in the shape of reported cases, on this section, the procedure to be followed will be that found in Sherwood et al. v. United States (D. C.) 5 F.(2d) 991, an opinion of Judge Campbell's.
In this Sherwood Case the mortgage in question apparently was not disputed, and being prior to the lien of the United States, the property was ordered sold and payments from the proceeds of such sale were to be made as therein stated.
In the case before me the mortgages are also found to be prior in time and so far as I can see are not disputed and a prima facie case of their validity has been made.
In fact, the government has indicated nothing to offset the proof that the mortgages were duly made and recorded and have not been paid.
In the case of United States v. Rindskopf, Fed. Cas. No. 16,166, the question of the validity of the mortgage was not gone into.
While the statute in...
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...* * by evidence that is clear, precise, and indubitable"; cf. Cloud v. Markle, 186 Pa. 614, 40 A. 811, and see Fox v. Queens County Sales Co. Inc., D.C.E.D.N.Y.1931, 52 F.2d 794. It may be concluded from circumstantial evidence. Chorost v. Grand Rapids Factory Show Rooms Inc., 3 Cir., 1949,......
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...all mortgage or judgment liens which were acquired prior to the date of recording or filing of the notice. See Fox v. Queens County Sales Co., Inc., D.C.N.Y.1931, 52 F.2d 794; Minnesota Mutual Life Insurance Co. v. United States, D.C.Tex.1931, 47 F.2d All requisites for the attachment of go......
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...it does any other lien. The cases of Integrity Trust Co. v. United States, 3 F.Supp. 577 (D.C.N.J.1933), and Fox v. Queens County Sales Co., Inc., 52 F.2d 794 (D.C.E.D.N.Y.1931), cited by the bidder, are not in point. Finally, the bidder argues that under the decision in United States v. Wh......
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