¶1 It is sought in this action to have an assignment to plaintiff’s intestate in 1879 of the interest of Margaret W. Hettrick in the estate of the late John H. McCunn adjudged to he a superior lien to a claim made upon the same interest by defendant.
¶2 The assignment to plaintiff’s intestate was executed and delivered about August 21st, 1879, as collateral security to a debt that is undisputed.
¶3 On the 5th of September, 1882, the defendant recovered a judgment against Margaret W. Hettrick for the sum of $2,683.22;
¶4 On the 11th of October, 1882, plaintiff’s intestate recovered judgment against Margaret W. Hettrick for $2,391.25, the amount of his claim against her.
¶5 The assignment to plaintiff’s intestate was not recorded as a mortgage, but by error was placed in a book of Conveyances.
¶6 On the 26th of September, 1882, Margaret W. Hettrick executed and delivered to the defendant a warranty deed which conveyed to him an undivided two seventy-fifth parts in fifteen certain parcels of land in the city of Hew York; this conveyance was duly recorded.
¶7 The consideration for the deed was the satisfaction of the judgment recovered by the defendant against Margaret W. Hettrick September 5th, 1882, as aforesaid, which was recorded September 30th, 1882. . -
¶8 The premises, a portion of which was covered by the foregoing deed to defendant, were partitioned, and the sum of two thousand dollars, the share of Margaret W. Hettrick, is now held by the United States Trust Company as the fund involved .in this action.
¶9 It is conceded that if the defendant took without actual notice of the assignment, and is a Iona fide purchaser under his deed, that his claim upon the fund is superior to that of the plaintiff under her unrecorded assignment. .
¶10 *311 The opinion of the learned Appellate Division did not consider the sufficiency in law of the consideration which the defendant claims supports the conveyance to him, hut held that the evidence establishes that the defendant is not a bona fide purchaser, because he had actual notice of the plaintiff’s assignment, and reversed the judgment of the Special Term, - rendering judgment absolute in favor of respondent.
¶11 We agree with the Appellate Division that the decision of the trial court is clearly against the weight of evidence, and its judgment was properly reversed (Heller v. Cohen, 154 N. Y. 309; Foster v. Bookwalter, 152 N. Y. 166, 168 ; Benedict v. Arnoux, 154 N. Y. 715), but we are not satisfied that plaintiff was entitled under this reversal upon the facts to judgment absolute, if it be assumed that defendant’s deed rests upon a valuable consideration.
¶12 To justify an intermediate court in rendering final judgment against the respondent upon the reversal of a judgment, it is not sufficient that it is improbable that the defeated party can succeed upon a new trial, but it must appear that he certainly cannot. (New v. Village of New Rochelle, 158 N. Y. 41, and cases cited.)
¶13 The course of the trial below leads strongly to the conclusion that it is highly improbable the defendant, on a new trial, can succeed in showing he did not have actual notice of the plaintiff’s assignment, but it is exceedingly doubtful if the record shows that he certainly cannot.
¶14 It, therefore, is necessary to consider the sufficiency, in law, of the consideration which the defendant claims supports the conveyance to him, and we will assume for the argument’s sake that he took his deed without actual notice of plaintiff’s assignment.
¶15 The nature of the consideration for this deed rests upon undisputed evidence.
¶16 The trial court found that it was the satisfaction of the judgment that defendant recovered against Margaret W. Hettrick September 5th, 1882. The complaint resulting in this judgment shows that tiie indebtedness was for money loaned *312 and property sold Margaret W. Hettrick years before. ■ It is' clear that the judgment represented an antecedent indebtedness of long standing.
¶17 In DeLancey v. Stearns (66 N. Y., at page 161), Judge Rapadlo said: “ It has been held in numerous cases that one who, without notice of a prior unrecorded mortgage, takes a conveyance of land in payment of an existing debt or as security therefor, without giving up any security, divesting himself of any rights, or doing any act to his own prejudice on the faith of the title, before he has notice of the mortgage, is not a bona fide purchaser.”
¶18 The surrender by defendant of the right to enforce his judgment just recovered as a consideration for a deed which was the absolute payment of the greater part of his claim, which for years had remained uncollected, was not divesting himself of any right or security to his own prejudice, but was the act of assuming a far more favorable position.
¶19 Within all the controlling cases in this state the defendant is not a bona fide purchaser, assuming he had no notice of the plaintiff’s assignment. (Dickerson v. Tillinghast, 4 Paige, 215; Evertson v. Evertson, 5 Paige, 644, and cases cited; Weaver v. Barden, 49 N. Y. 286, 293 ; Cary v. White, 52 N. Y. 138; Westbrook v. Gleason, 79 N. Y. 28, and cases cited; Young v. Guy, 87 N. Y. 462.)
¶20 The judgment appealed from should be affirmed, with costs.
¶21 All concur.
¶22 Judgment affirmed.