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Who’s on first?

Reader Jill M. has an ancestor who was embroiled in a lawsuit in New York State in 1865. But oh boy… what a lawsuit!

NY Court of Appeals, 1865

She was fortunate to find both the reported decision of case in the New York Court of Appeals1 and the case files of the case as it progressed on appeal from the Cayuga County General Court to the New York Supreme Court to the Court of Appeals2 online. But the language and the complexity of the case left her shaking her head: just what was going on in this complicated land deal?

Looking at the case reports, it’s sure easy to see why anybody would have trouble figuring this one out. It’s a great big case of who’s on first — and what did he have while he stood there!

Wading through the records of Murray v. Walker, here’s what happened:

     • On 17 September 1847, Theron Green bought a piece of property in Auburn, Cayuga County, New York, from the State of New York, subject to a mortgage. The property cost $610, and Green made a small initial payment and took possession of the land.

     • On 3 November 1847, Green assigned the contract for the property to David Stanford of Auburn. Stanford went ahead and built some buildings on the property.

     • On 5 January 1853, Stanford assigned his interest in the contract for the property to William Murray of Sennett “to secure the payment of eight hundred and fifty dollars, with interest, two years from this date.”

     • On 10 August 1855, Stanford owed a ton of money — more than $10,000 — to Erastus Corning of Albany. So he mortgaged the property to Corning. The mortgage was properly recorded in the Cayuga County Clerk’s Office, Book 48, page 185.

     • Sometime before 8 May 1857, Stanford defaulted on the mortgage. Corning then went to court and foreclosed on the property.

     • On 8 May 1857, Michael Walker — who ended up as the defendant here — leased the property from Corning and took possession of it.

     • On 11 September 1857, Murray took his assignment of the contract from Stanford to the State authorities and got them to issue him an actual patent for the property.

     • On 26 December 1857, Murray brought an action of ejectment — the usual method of getting a court to decide who had title to land3 — against Walker.

     • On 29 April 1858, the Cayuga County Circuit Court agreed with Murray and ordered the property turned over to Murray and Walker to pay Murray for the use of the property.

     • Walker appealed. On 6 January 1859, he filed his appeal to the New York Supreme Court.4 In June 1859 it ordered a new trial. On 11 October 1859, the new trial was held and on 7 December the court ruled in favor of Walker.

     • So Murray appealed. On 31 December 1859, he filed his appeal to the Supreme Court, but on 9 June 1860 the Supreme Court affirmed the decision in favor of Walker.

     • On 30 June 1860, Murray appealed to the New York Court of Appeals.5 And when that court ruled in 1865, Murray lost.

What the whole case boils down to, in essence, is this: what exactly was the interest in the land that William Murray got on 5 January 1853? If it was legal title, then his title came first and everybody after him would lose. But if it was something less than legal title, then he would lose.

That’s where understanding the language of the law comes in. The court papers keep using terms to describe what was being bought and sold here as title that was “defeasible and conditional” and “a mortgage interest” and therein lies the tale.

When Theron Green got the original contract for the land in 1847, he didn’t pay the full price. So he didn’t own the land outright; he owned it subject to a mortgage. That means his title to the land was defeasible: “subject to be defeated, annulled, revoked, or undone upon the happening of a future event… For instance, a mortgagee’s estate is defeasible (liable to be defeated) by the mortgagor’s equity of redemption.”6 Bottom line: he didn’t have full legal title to the land, he only had a lesser interest: the right to get full legal title if he paid in full. That’s what the law in New York at the time called equitable title, not legal title.

When Green assigned his title to Stanford, Stanford didn’t get any more title to the property than Green had. And when Stanford assigned his title to Murray, Murray didn’t get any more title than Stanford had — and Stanford’s agreement with Murray made it clear that their deal had an additional condition: Stanford could get his right to the property back “on the payment of eight hundred and fifty dollars, with interest, two years from this date.”

In other words, this was a mortgage, not legal title, and that’s what the courts kept saying: “(Murray’s) title was, and still is defeasable (sic) and conditional. It remains a mere mortgage interest, with the right of redemption in Stanford or his assignees; for “once a mortgage always a mortgage,” until foreclosure, is a fundamental principle.”7 And “(t)his assignment was, on its face, nothing but a mortgage.”8 In other words, all Murray had the right to was the money Stanford agreed to pay. He could have gone to court and foreclosed on the deal, and that would have strengthened his hand. But he didn’t.

And because Murray didn’t foreclose on the mortgage when Stanford didn’t pay up early in 1855, he didn’t take the right steps to get legal title. Because Corning — the later creditor — did foreclose, and he foreclosed before Murray got the patent from New York State, Corning had the stronger legal position. So Walker, as Corning’s tenant, didn’t owe Murray a thing.

Looking at the lawsuit from a genealogical perspective, I’d bet that the only relationship between Stanford and any of the people he dealt with — including Murray — was a business relationship. There’s nothing to suggest he was trying to help any family member out, and a lot to suggest that if you knew him well, you wouldn’t have wanted to do business with him at all.

Sure have to feel sorry for Murray in this! He ended up having to pay Walker the court costs for the whole case.9 But at least his name will be long remembered in New York legal circles. The case of Murray v. Walker was cited dozens of times in later cases for the rule that cost Murray the case: “once a mortgage always a mortgage.”10


  1. Murray v. Walker, 31 N.Y. 399 (1865), in Joel Tiffany, reporter, IV Reports of Cases Argued and Determined in the Court of Appeals of the State of New York (Albany : Weare C. Little, 1866), 399-404; digital images, Google Books ( : accessed 21 Jun 2012).
  2. New York Bar Association, Court of Appeals Records and Briefs, 1865, vol. 9, case 6 (publication data not given); digital images, Google Books ( : accessed 21 Jun 2012).
  3. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 411, “ejectment.”
  4. Despite the name of this court, it’s not and never has been the highest court of New York.
  5. This is the highest appeals court in New York, the equivalent of what’s usually called a Supreme Court in other states and, of course, in the federal system.
  6. Black, A Dictionary of Law, 344, “defeasible.”
  7. Opinion of Judge E. Darwin Smith, 1859, Cayuga County Circuit Court, October 1859, in Court of Appeals Records and Briefs, 1865, vol. 9, case 6, page 6.
  8. Murray v. Walker, 31 N.Y. at 403.
  9. Supreme Court Judgment Order, 12 June 1860, in Court of Appeals Records and Briefs, 1865, vol. 9, case 6, page 14.
  10. See e.g. In re New York Title & Mortg. Co., 279 N.Y. 236 (1938); Macauley v. Smith, 132 N.Y. 524 (1892); Shattuck v. Bascom, 105 N.Y. 39 (1887).
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