11 N.Y.S. 548 | N.Y. Sup. Ct. | 1890
This action was brought to foreclose a mortgage dated August 25, 1888, and recorded September 4,1888, executed and delivered to the plaintiff by the defendant Bradford Taber as security for the payment of the
Upon the whole evidence it is abundantly established that all of this real estate was purchased for the sole benefit of Hiles O. Taber. Though at times Bradford Taber appears as the formal party to the contract, or in the negotiations for the sale, yet in every such instance he was moved to. it by Hiles C. Taber. The evidence which has resulted in an adjudication that the deeds are but mortgages, is not wholly dependent upon the oral admissions or
But the case, in its principal parts, rests upon other considerations than those affecting the existence and validity of this agreement of the parties, for, under the recording act, if the plaintiff, without knowledge or notice of the equities of the parties in possession, and in reliance upon the record title of the mortgagor, received the mortgage in suit in good faith, and for value, he would be entitled to a judgment of foreclosure and sale of the premises. The question presented by this proposition is, under the evidence, by no means free from difficulty. It should be stated that the plaintiff not only had no notice of the agreement between Niles C. Taber and Bradford Taber, but lie personally had no knowledge óf the fact that Niles 0. Taber and his heirs had been in the possession and actual occupancy of the farm from the time the conveyances thereof had been delivered to the grantee. Furthermore, he advanced the full consideration of the note and mortgage, no part of which has been paid. His demand, therefore, that he be permitted to enforce the securities which he holds for the indebtedness ought not to be denied him except upon established facts showing that such enforcement would either contravene some principle of law or run counter to the equities existing between the parties. Yet, unless he occupies the place of a bona fide mortgagee, within the well-established meaning of the phrase, he cannot be permitted to enforce the mortgage against the persons shown to be the true owners of the lands. The plaintiff, who had little if any knowledge of the value of the security, relying doubtless upon the financial ability of the borrower, intrusted the business of taking the mortgage to his attorney and agent. Though there is no evidence of any notice to the plaintiff personally, yet he is chargeable with any knowledge of his agent acquired in the transaction, and if the latter had notice of the actual possession and occupancy of the mortgaged premises by the respondents the plaintiff must be deemed to be charged therewith to the same extent as though he had acted thoughout in his own behalf. Story, Eq. Jur. §§ 408, 408a; Griffith v. Griffith, 9 Paige, 315. It follows, that the ^plaintiff took the mortgage charged with all the consequences of the application of the rule stated by Judge Selden in Williamson v. Brown, 15 N. Y. 362, which is as follows: “ The true doctrine on this subject is that where the purchaser has knowledge of any fact sufficient to put him on inquiry as to the existence of some right of title in conflict with that he is about to purchase, he is presumed either to have made the inquiry and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser. This presumption, however, is a mere inference of fact, and may be repelled by