#### Strong *v.*Dollner & Potter.

The plaintiff was the grantee of premises otifcupied by the defendants, at the time of his purchase, under a lease from the grafitor. The deed to the plaintiff Was subject to a mortgage Upon the premises, and was unrecorded. The defendants had attorned to the plaintiff, and paid rent to him. Subsequently the mortgage was foreclosed, but the plaintiff was not made a party to the suit. The premises were sold by a master, on the 7th of April, and bid off by M., under whom the defendants claimed J but M. did not pay the purchase money, until the 5th of May, when he took a deed from the master, and had it recorded. In an action by the plaintiff to recover the rent due on the 1st of May next after the sale ; *Held,*that his claim to the rent was unaffected by the foreclosure proceedings, and that his title remained valid Until it was divested by the recording of the master’s deed.

*Held also,*that the recording of the master’s deed had no relation back to the time of the sale, so as to divest rights of action previously accrued to the plaintiff by virtue of his unrecorded deed.

Although the recording act makes an unrecorded conveyance void as against a subsequent purchaser in good faith, for value, whose deed is recorded first, it does not avoid the former as of a time prior to the execution of the latter. It does not transfer to such subsequent purchaser rights in respect of the property, against third persons, which were vested in the owner holding under the unrecorded deed, prior to the execution of the subsequent conveyance.

A bid at a master’s sale, its acceptance by the master, and the payment of a per centage upon the purchase money, work no change in the title, even in equity The purchase is inchoate and defeasible until the acceptance of the title, on his part, and the confirmation of the report of sale, on the part of the court.

March 15 ;

April 21, 1849.

*445This was an action on the case for use and occupation of the premises No. 166 Front street, in the city of New York, for one quarter due May 1, 1847. The amount claimed was $250 The declaration contained three counts, one for use and occupation generally; the second claimed to recover by virtue of a lease of the premises from B. W. Strong to the defendants, for one year from May 1, 1846, at a rent of $1000, and an assignment of the lease from Strong to the plaintiff, executed October 13, 1846 ; the third, claiming it as the grantee of Benjamin W. Strong, by deed of the premises, bearing date October 7, 1846. The defendants pleaded the general issue.

Upon the trial of the cause, it appeared in evidence by the testimony of Dollner, one of the defendants, that the premises in question were hired by the defendants from B. W. Strong, for one year from May 1, 1846, at a rent of $1000, under a written lease ; that the first quarter’s rent was paid to the lessor; that the second and third quarters were also paid, and as appeared by the receipt book of the defendants, receipts were given signed by B. W. Strong for Peter R. Strong, the plaintiff, but the last quarter’s rent had not been paid. The plaintiff then offered in evidence, a deed of the premises ftom B. W. Strong to the plaintiff, dated October 7, 1846, duly acknowledged, without any covenant, and subject to a mortgage upon the premises, given by the grantor to Susan Remsen, for $10,550, payable April 20, 1846. This deed had never been recorded.

The plaintiff thereupon rested, and the defendants’ counsel read in evidence a deed of the premises in question, from Philo T. Ruggles, master in chancery, to Thomas H. Mills, dated May 5, 1847, executed pursuant to a sale of the premises made by him April 7, 1847, under a decree for the foreclosure of the mortgage of B. W. Strong to Remsen, which mortgage, by sundry assignments, had become vested in William J. Schenck. It further appeared, that the bill of foreclosure and notice of *lis pendens*were filed December 31,1846, and sundry judgment creditors of B. W. Strong were made parties to the suit, but the plaintiff in this suit was not; that a decree of foreclosure was entered March 9, 1847, which was enrolled April 14, 1847. The defendants then offered in evidence, a lease of the premises *446from Thomas H. Mills to the defendants, dated April 13, 1847, for one year from the first of May thereafter, and proved the same by Dollner, one of the defendants, who also testified, that at and before the delivery of the lease, Mills requested the defendants to pay him the rent due on the 1st of May.

The plaintiff’s counsel objected to this testimony as irrelevant, and because it was of a date before Mills had acquired title to the premises.

The defendants having rested, the plaintiff’s counsel called Philo T. Ruggles, who testified that the master’s deed was not delivered till the 5th of May, and that the purchase money was paid on that day; that there had been no demand for the deed, or offer to pay the money by Mills before that day. It appeared by the testimony of the solicitor of Thomas H. Mills, that the delay in closing the contract of sale was owing to some impediment in the title, and that Mills was ready at any time to pay the purchase money, and that 10 per cent, had been paid by him to the master, on the day of the sale.

The testimony having been closed, a verdict was taken for plaintiff, for $266 75, subject to the opinion of the court on a case.

*J. Lynch,*for the plaintiff.

*A. C. Bradley,*for the defendants.

By the Court. Sandford, J.

The defendants attorned to the plaintiff, after the lessor conveyed to him, and he is clearly entitled to receive the rent which became due on the first of May, 1847, unless the defendants have shown that his title was divested before that day. It is claimed that this is shown by the foreclosure and the master’s deed. It is not supposed that the decree of foreclosure, or even the master’s sale, affected the legal title; and the master’s deed was not delivered, until the fifth day of May. Nor is this the whole difficulty in the defendant’s point. The decree, the sale, and the deed, all combined, did not affect the plaintiff’s title in the least; because he was not made a party to the foreclosure suit. *(Watson*v. *447
      *Spence,*20 Wend. 260.) It is only because the mater’s deed was recorded, and the plaintiff’s was not, that the former operated to divest his title. Therefore, looking at the facts as they existed when the price was paid by Mr. Mills and the deed delivered, there was no reason whatever to prevent the plaintiff from collecting this rent. His right to it was as perfect as it was to any other thing .in action in his hands overdue. At the end of the next quarter, it is true, the tenants could have successfully resisted his right to recover the rent, not because the decree and sale affected him, but because during the quarter, the recording of Mr. Mills’ deed made his unrecorded deed void as against the former.

The plaintiff’s right was cut off by the recording of the master’s deed. All that went before, failed to have that effect. The deed was perfect, and as operative as the decree could make it, upon its delivery by the master; yet up to that stage of it, the plaintiff’s legal title had not been touched. The act of recording the master’s deed, which had the effect to give Mr. Mills the better title, derives its force solely from the recording act, which has no relation back to divest rights of action accrued to the owner holding by the unrecorded deed. For example, if the plaintiff, on the second of May, had commenced an action of trespass for injuries done on the preceding day to the freehold of these premises, it would have been no defence on the trial, that on the fifth of May, Mr. Mills had received a deed from a former owner, which he had placed on record, and the plaintiff’s deed never having been recorded, his title was divested in favor of Mr. Mills.

Although the recording act makes an unrecorded conveyance void against a subsequent purchaser in good faith for value, whose deed is recorded first; it does not avoid the former as of a time prior to the execution of the latter. It does not transfer to such subsequent purchaser, rights in respect of the property against third persons, which were vested in the owner holding under the unrecorded deed, prior to the execution of the subsequent conveyance.

The defendants insist that the equity of Mr. Mills was superior to that of the plaintiff, and therefore the recording should *448have effect by relation, to the date of the master’s sale. We do not perceive that there is any such superior equity. The plaintiff was the owner of the equity of redemption, and was compelled to pay interest on the mortgage debt until the entire purchase money was paid in by Mills on the fifth of May; or which is the same thing, such interest was taken out of the proceeds of the sale, the surplus of which presumptively belonged . to the plaintiff. On the other hand, Mr. Mills could at any time have withdrawn from his bid, on account of the defect of parties in the foreclosure; he did not elect to complete his purchase until the fourth of May; and he did not pay the price till the fifth. .

• It was argued with great ingenuity, that the master’s deed related back to the sale by which the contract of purchase was made, and in equity dates from the agreement to purchase. If this were conceded, it might fall short of reaching the legal title, which is alone in question in the action for use and occupation. But we think the proposition cannot be maintained.

- The *bid at*the sale, its acceptance by the master, and the payment of the ten per cent., wrought no change in the title, even in equity. The ten per cent, was a mere security for the good faith of the bid, and it would have been refunded, if the purchaser had refused to complete, on account of the defect in the proceedings. His purchase was entirely inchoate and defeasible, until the acceptance of the title on his part, and the confirmation of the report of sale on the part of the court. (See *Brown*v. *Frost,*10 Paige, 247.) The contract was not complete as to the purchaser himself, until he paid the whole price. If he had paid the price on the 20th of April, the day fixed for that purpose in the terms of sale, he would from that time have been the equitable owner of the premises, and as against the parties to the foreclosure, might have intercepted the rents falling due afterwards. But to do this, he would have required an order of the court of chancery, operating upon the parties in the suit.

As he did not pay till the fifth of May, we think he cannot, even in equity, be. deemed the purchaser as of a date prior to the time when he was bound to complete his purchase. The. *449rule in the English court of chancery is, that the purchaser is entitled to rents from the quarter day next prior to his payment of the purchase money. (Hoffman’s Master’s Pr. 231; 2 Dan. Ch. Pr. 913 ; and the cases cited.) And it makes no difference that the money has been ready from the time the premises were struck off, and has been lying unproductive. *(Barker*v. *Har*per, Cooper’s Rep. 32; 1 Barb. Ch. Pr. 530; 2 Smith’s Ch. Pr. 177.)

In the case of the sheriff’s deed, cited by the defendants, the seizure and sale of the land does not divest the title of the debtor. The payment of the purchase money and the deed must concur; and there is no case where the doctrine of relation, in respect of such deeds, has been extended back to a period anterior to such payment. *Catlin*v. *Jackson, ex dem. Gratz,*8 Johns. 520, 550; *Lathrop*v. *Ferguson,*22 Wend. 116.) In the case last cited, Cowen, J., says, the whole doctrine is a fiction, to prevent fraud; and if a person neither having, nor assuming to exercise, any control in preventing the performance of the contract or sale, acquire a legal and executed right, which is prior in time, he is deemed prior in law and equity, and entitled to hold without prejudice from the fiction.

Again, if there were any relation to the time of sale, or the day fixed for completion, such relation was perfect when the price was paid, the master’s deed delivered, and the sale confirmed. Yet stopping there, Mr. Mills would,not have been able to obtain possession of the premises from the plaintiff and his tenants, much less to divest the rent due to the plaintiff. It was the recording of his deed alone, that enabled him to obtain possession.

These considerations are conclusive against giving to the master’s deed the retrospective operation claimed for it, and the plaintiff is entitled to judgment.

Judgment for plaintiff.