Opinion
November Term, 1902.
Wyllys Hodges [ Everett P. Wheeler and Clarence B. Smith with him on the brief], for the appellants.
William D. Gaillard, for the respondent.
We are of opinion that the title based upon the judgment of foreclosure herein is not good, even upon the authority of Townshend v. Frommer ( 125 N.Y. 446). That decision really turned upon the point that the whole estate was transferred to the trustee, and that every interest not embraced in the trust remained in the grantor; so that, as was stated by Judge GRAY, no estate could vest in any others until the death of the grantor terminated the estate in the trustee.
If this interpretation of the opinion in that case be correct, the result reached there is not controlling here; and the rule which was applied in Campbell v. Stokes ( 142 N.Y. 23) seems to have justified the purchaser in refusing to take this title. We can see no reason why the doctrine which was there applied to partition does not equally apply to the foreclosure of a mortgage.
The order appealed from should be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.