113 F. 378 | U.S. Circuit Court for the District of New Jersey | 1902
The complainant in this case files 1ns bill for the foreclosure of his certain mortgage for $10,000 upon lands in the county of Somerset, in. the state of New Jersey, bearing date May 1, 1899, executed by George Booth, and Ella, his wife, on the same day, delivered to complainant on the 3d day of May, 1899, and lodged for record in the clerk’s office of Somerset comity on the 6th of May, 1899. The bill also prays that the complainant’s mortgage may be declared to be a prior lien on the property therein described to another certain mortgage given by sa.id Booth to one Ilowlett, and now held by assignment by the Dime Savings Institution, of Plainfield, N. J., and which, while bearing date the 3d day of May, i899, was lodged for record in the clerk’s office of Somerset county on the 3d day of May, 1899, three days prior to the date of record of complainant’s mortgage. The following facts are not disputed, and they clearly appear from the record: That the complainant agreed to loan to defendant Booth the sum of $10,000, to be secured by mortgage on the property described in the bill, and that such mortgage was drawn on May x, 1899, executed by Booth and his wife on May 1, 1899, and the money paid on the morning of May 3, 1899, $2,498 in cash, $2,400 by receipt of admití ed indebtedness of Booth to complainant, and $5,102, the amount due upon an existing mortgage on the premises, held by the Mutual life Insurance Company of New York; that the complainant’s mortgage was forwarded by mail to the clerk of Somerset county, where the lands were located, 1:o be lodged for record; and that, because the instrument was not properly stamped as required by the United States revenue laws, it was returned to complainant’s attorney, who, after affixing the requisite stamps, returned it again to the clerk, so
“That every deed of mortgage, or conveyance in nature of a mortgage, of or for any lands, tenements or hereditaments, which shall have been, made and executed after the first day of January, in the year of our Lord one thousand eight hundred and twenty-one, or shall hereafter be made and executed, shall be void and of no effect against a subsequent judgment creditor, or bona fide purchaser, or mortgagee for a valuable consideration, not having notice thereof, unless such mortgage shall be acknowledged or proved according to law, and recorded or lodged for that purpose with the clerk of the court of common pleas of the county in which such lands, tenements or hereditaments are situated, at or before the time of entering such judgment, or of recording or lodging with the clerk as aforesaid, the said mortgage or conveyance to such subsequent purchaser or mortgagee: provided, nevertheless, that such mortgage, as between the parties and their heirs be valid and operative.”
So that upon the face of the record in the office of the county clerk the mortgage given to Howlett was a prior lien on the property to that of the mortgage of Coonrod, though the latter was first in date, and delivery. To give Coonrod priority for the lien of his mortgage, it was necessary for him to show that Howlett was not a mortgagee for valuable consideration, or that at the time he took said mortgage he had notice .of complainant’s mortgage. These matters are not presumed. The burden of proof is upon the party alleging them. Semon v. Terhune, 40 N. J. Eq. 364, 2 Atl. 18. The complainant charges them in his bill, but the proofs do not sustain him. The only witnesses examined on part of complainant touching these matters were Booth, the mortgagor, and Howlett, the mortgagee. Booth swears that he did not say anything to Howlett of having mortgaged the property to complainant;' that he had pre
It is contended that because the Dime Savings Institution, in searching the title, found upon the record a mortgage subsequent in record and prior in date to that of which they took the assignment, such finding was actual notice of its existence, and that they were
Let a decree be drawn accordingly.