34 N.J. Eq. 252 | N.J. | 1881
Lead Opinion
Dissenting Opinion
dissenting.
This is an appeal from a decree of chancery in a foreclosure ■case. The question is as to priority of mortgages.
Both mortgages were executed on the same day, upon the same premises, to the same mortgagee, and both purported to be for ■ purchase-money.
Both mortgages were assigned; one.to the complainant and the other to the defendant.
The mortgaged premises consisted of two adjoining city lots, on one of which was a house.
The mortgage assigned to defendant was first recorded.
There is no doubt that while the mortgagee held both mortgages, they were concurrent liens.
The mortgage now held by complainant was first assigned by the mortgagee, and the assignee was then told that it was first in •order of priority on the whole premises. But such statement was not inserted in the deed of assignment.
Subsequently, the defendant purchased the other mortgage. Pie knew it was recorded first, and, by the registry, appeared prior to the mortgage held by complainant upon both lots.
Before paying his money for it, and taking an assignment, he was told'upon inquiry of the mortgagee, who had previously assigned the mortgage which complainant holds, that the mortgage he was about to assign to him was second to complainant’s mortgage on the house lot, but was first on the vacant lot.
The defendant did not know that at the time of the assignment of the mortgage to complainant, or at any other time, the mortgagee had stated that it was a first mortgage on the whole property. "
The defendant was a bona fide assignee of the mortgage transferred to him, and he took it free from all latent or secret equities.
The defendant found the mortgage of which he was about to take an assignment first of record, and apparently prior to the •other mortgage on both lots, but upon inquiry of the mortgagee,
The defendant was not bound to inquire further. The mortgagor could not give him any information, for he was not supposed to know what the mortgagee had said or done, when he assigned the mortgages, to affect their order of priority.
The defendant could have insisted upon- the record, had he not been informed that it had been qualified to some extent. He is bound to the extent of the information he received, but no further. He was not obliged to seek further to contradict or ■qualify the record.
The complainant’s mortgage should be paid first out of the proceeds of the sale of the house lot, but not first out of the proceeds of the vacant lot.
I think the decree should be reversed.
Eor affirmance—Beasley, C. J., Dixon, Scudder, Van■Syckel, Clement, Cole, Dodd, Green—8.
Eor reversal—Depue, Parker, Reed—3.
