By the Court, T. R. Strong, J.
The title to the premises in question, in 1818, was in Peter Young; who is the common source of title of the respective, parties to the action. In October of that year, Stephen S. Munn recovered a judgment against Young and Abraham Cutler, which was docketed on the *35824th of October ; and in November following, John Mowatt, jr. recovered a judgment against the same persons, which was docketed the 12th of that month. Executions were issued on these judgments ; and under that on the Munn judgment the premises were sold to Henry D. Barto, the latter part of December, 1819, or early in 1820; under that on the Mowatt judgment the premises were sold to William Platt, about the same period. No deed was executed to Barto by the sheriff until the 22d of April, 1853. Barto conveyed to Jacob J. Young and John J. Young, by deed dated the 7th of November, 1820, which was recorded the 17th of the same month. In the description of the premises in this deed, it is stated that they were purchased by Barto at a sale by the sheriff under the Munn judgment. John J. Young conveyed to Andrew J. Cutler and others, the deed bearing date May 22, 1847, proved June 27, 1849, and recorded the 8th of October then next. The defendant is in possession of the premises as tenant of Andrew J. Cutler. A deed was executed by the sheriff to Platt, on the sale to him, dated February 2, 1820, acknowledged the same day, and which was recorded the 26th of February. Platt conveyed the premises to Jeremiah S. Beebe, by deed dated February 21,1820, which was recorded April 2, 1828. Beebe conveyed to Abraham Cutler, the deed bearing date 27th February, 1828, and acknowledged and recorded the 11th of November following; and the latter executed a mortgage of the premises to the New York Life Insurance and Trust Company, dated the 29th of November, 1832, and which was recorded the 5th of December, 1832. This mortgage was foreclosed,1 and the premises were sold under the judgment in the foreclosure suit, to the mortgagees, who took a deed from the sheriff dated the 13th and recorded the 14th of February, 1852. The Company conveyed to Elijah Baker, by deed dated April 12th, 1852, acknowledged the 19th of April, and recorded the 31st of April, 1852, and the plaintiffs deduce title from Baker.
It will be seen from the foregoing statements and deductions of the titles of the parties, that at the time of the execution of the mortgage from Abraham Cutler to the New York Life In*359surance and Trust Company, the mortgagor had a regular paper title to the premises, duly recorded, through the judgment of Mowatt against Peter Young; and that the records did not show any deed from the sheriff on the sale to Barto, the deed not having then been executed. The mortgagees were, therefore, under the recording acts, entitled to a preference for the mortgage over the title under the Munn judgment, unless at the time of taking the mortgage they had notice of that title. The record of the deed from Barto to Jacob J. and John J. Young, containing a recital of the sale under that judgment, was not such notice. There being no record of a conveyance to Barto, and no evidence of notice that he made any claim to the premises, they were not required to search for a conveyance by him, and were in no way affected by the record of such conveyance. (Murray v. Ballou, 1 John. Ch. 566.) lío evidence was given of direct or actual notice to them of title in or through Barto. It appears, however, that Peter Young was in possession of the premises at the times of the sales under the judgments, and continued to possess the premises until 1850; and proof was given tending to show that he claimed the title under a life lease executed by Jacob J. and John J. Young to him at the time Barto conveyed to them; but there' was no proof, beyond the possession, that the mortgagees knew what claim he made. Assuming that he had such a lease under which he occupied, was his mere possession, without any thing further, notice to third persons of the title by which he held possession 1 It is a general rule, that the possession of land is notice to others of the possessor’s title. (4 Kent's Com. 179, and notes to 7th ed. Tuttle v. Jackson, 6 Wend. 213, 226. Wright v. Douglass, 10 Barb. 97. Troup v. Hurlbut, Id. 354. Merritt v. Northern Rail Road Co. 12 id. 605.) But it is not universally true; the notice is merely an inference; it may not arise in some cases ; it may be repelled in others; and in others it may be restricted to some particular title or claim. The rule, like all rules of circumstantial evidence, must be governed by the particular circumstances of each case, and have a reasonable operation. In McMechan v. Griffing, (3 Pick. 156,) Wilde, J. says, “ Sup*360pose that a lessor should grant the fee of the land to the lessee, he being in possession under the lease, and the next day he should make a second grant to a third person, who well knew that the lessee the day before was in possession under the lease, how does his continued possession furnish evidence of notice of his purchase?” He adds, “ To imply notice in such a case, is to presume a fact, without proof and against probability.” In Scott v. Gallagher, (14 Serg. & Rawle, 333,) the facts were, that Gallagher and wife, on the 21st November, 1786, conveyed certain premises to one McCormick. The deed was regularly acknowledged and recorded. On the 29th November, 1786, a bond was executed by McCormick to Gallagher, whereby the former became a trustee, and the latter the cestui que trust of the premises. Scott deduced title from McCormick, the deed to him bearing date the 12th of July, 1790. Gallagher was then in the possession, and had retained the possession ever since the conveyance to McCormick, exercising every act of ownership over the premises. It was held, that notice of the trust could not. be implied from this possession. Rogers, J. says, “ Had then Scott such a notice of this agreement as to affect him ? It is said that he had, because Gallagher continued in possession and received the rents and profits of the property until the commencement of this suit. How this can be notice of a parol agreement between Gallagher and McCormick, I am, at a loss to conceive. Scott, who lived in the state of New Jersey, looked only to the deed in fee simple, given by Gallagher to McCormick, regularly recorded, and which never was divested by a deed of reconveyance from McCormick. He is not bound to call on the person who is in the possession of the land, to inquire of him whether he has a secret agreement with the owner of the legal title. If there be an agreement, it is the duty of the tenant in possession to spread it upon the records of the county, in order to prevent innocent persons from being deceived. A. sells a tract of land to B., and retains the possession ; B. sells to C.; C. is not bound to call on A. to know whether there is not a secret agreement, adverse to the deed from A. to B., between them. He would be bound only by *361those agreements which are consistent with his deed, such as a retention of possession,-or payment of rent.” In Hewes v. Wiswell, (8 Greenl. 94,) it was decided that possession was only implied notice, which might be rebutted. In Woods v. Farmere, (7 Watts, 382,) it was held that where the record shows a particular title in the possessor, the notice from possession will be restricted to that title. (See Flagg v. Mann, (2 Sumner, 487.) In the present case, Peter Young was the acknowledged owner of the premises in question, in fee; his entire title had been sold and conveyed under the Mowatt judgment ; and the possession by him thereafter was of the same character as before, without any apparent change. I think, within the doctrine of the cases cited, the fair inference, and legal presumption, from his continued possession, was, that he was in under Platt, the purchaser and grantee of the sheriff, and those coming under him. It follows, that the mortgage lien must be preferred to the title of the grantees in the deed from Barto,
There was no such adverse possession as would avoid any of the conveyances in the plaintiffs’ chain of title. Peter Young, while in possession, was estopped by the sale and conveyance under the Mowatt judgment from setting up another title in himself; he was also estopped by the decree in the foreclosure suit, to which he was a party defendant; and it is proved that Henry and Andrew J. Cutler went into possession about 1850, under an agreement with Petet Young to support him; he claiming a life lease as before stated, and who then surrendered the possession. They were therefore estopped, in like manner with Peter Young, from disputing the title sought to be enforced by the plaintiffs. (Jackson v. Parker, 9 Cowen, 84. Jackson v. Graham, 3 Caines, 188. Jackson v. Hinman, 10 John. 292. Burhans v. Van Zandt, 3 Selden, 525. Jackson v. Harder, 4 John. 202.)
The mortgage having priority, notice to the mortgagees of the hostile title at the time of the sale under the decree in the foreclosure suit, or subsequently to any persons claiming under that sale, cannot affect their title under the mortgage. The *362protection which the mortgagees might claim, could not be impaired by a subsequent notice, and it extends to all claiming title through the mortgage, whether they had notice at the time of the purchase or not.
[Monroe General Term,
September 1, 1856.
These views appear to me to dispose of the case, and to show that the plaintiffs, who have proved a regular deduction of title through the sale in the foreclosure suit, are entitled to judgment.
Judgment is accordingly ordered for the plaintiffs.
T. R. Strong, Welles and Smith, Justices.]