The omission of the plaintiff to record his mortgage rendered it void only as against subsequent purchasers, in good faith for value, whose conveyances should be first duly recorded.
The appellant Osсar H. Steams does not occupy that position. The judge finds that the deed to him from the *160 mortgagors wаs without any valuable consideration, and was received by him with full notice of the plaintiff’s mortgage. By the terms of the deed, the property was conveyed to him “ subject to all existing incumbrances on sаid premises.” In his answer, he denies the allegation in the complaint that the conveyance was without consideration and fraudulent, but he does not allege what the consideration was or that hе paid any. He testified upon the trial that the consideration was money advanced and to bе advanced to Dwight Hyde, one of the grantors. That he had advanced a good deal, probаbly $8,000 or $10,000, but he does not allege that he advanced any after the conveyance or upоn the faith of it, and the fair inference from his testimony is that he did not, inasmuch as he testified that, at the time оf his examination, the account between him and Hyde was unsettled, and, as far as he could tell, the unsеttled matters amounted to between $4,000 and $5,000. On his own showing, therefore, he appears to have tаken this conveyance as security for an unsettled account. This would not constitute him a Iona fide purchaser for value, and, irrespective of the question of notice, the judge’s finding that the deed was without valuable consideration is sustained by the evidence.
The mortgage for $2,000 given by Stearns to the appellant Olive W. Bichardson is also found by the judge to have been given without consideration or value. In hеr answer, she does not set up that she paid value therefor. She simply ignores the allegations of the complaint, and she did not prove upon the trial that she had paid such value.
The mortgage of $2,500 held by the appellant Polhemus was originally made to one James, without consideration, fоr. the purpose of being negotiated, and was afterwards assigned by him to Polhemus. We think that upon the evidence the judge was justified in discrediting the statement of Polhemus as to his being a Toona fide purchaser of the mortgage for value.
The $2,000 mortgage given by Mr. and Mrs. Hyde to Larned, and by him assigned to Burton, and by Burton to *161 Steams, is not shown to have been given originally for value, аnd the testimony of Stearns, as to what he gave for it, is very loose and unsatisfactory. He says he thinks he gave the full amount of it to Mr. Hyde when he took it, but that he had so many transactions of the kind he could not recollect the particulars ; afterwards, he says he gave him a protested note. We think the finding of the judge that this mortgage was without consideration is sustained by evidence.
The only remaining question in the сase arises upon the $1,500 mortgage made by Mr. and Mrs. Hyde to Bradley and Currier, and subsequently assigned to the аppellant Olive W. Richardson. It is claimed that the uncontroverted evidence shows that Bradley аnd Currier paid value for this mortgage, and also that the appellant Richardson paid value fоr it when assigned to her, and that, although Bradley and Currier had notice of the prior mortgage, and toоk theirs subject thereto, yet that their
bona fide
assignee without notice is not bound by the notice to them. The cаse of
Jackson
v.
Van Valkensburgh
(
Although, on the question of notice, the
bona fide
assignee of the mortgage for value may stand in a better position than the mortgagee, she cannot, on the question of the consideration of the mortgage, either as between her and the mortgagor or third parties.
(Schaffer
v.
Reilly,
The judgment should be affirmed, with costs.
All concur. Folgeb, J., absent.
Judgment affirmed.