90 N.Y. 466 | NY | 1882
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *468 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *471 The defendant was beaten in the court below upon two grounds, either of which, if sustained, is fatal to his defense. First. That at the time of the execution of the mortgage by Mrs. Kleepfel to the defendant, "facts and circumstances had been brought to his (defendant's) knowledge relating to said Mrs. Kleepfel's purchase of the mortgaged premises of the plaintiff and of the unpaid balance by her of the purchase-price, and the plaintiff's lien on the premises therefor, and the existence of his mortgage thereon, sufficient to put him, a man of ordinary prudence and discretion, upon inquiry, and upon his guard as to the plaintiff's lien for the purchase-money and the terms of his mortgage. That the means of full and complete information as to the aforesaid rights of the plaintiff were immediately and conveniently accessible to said Horrman, and were sufficiently suggested to him by the facts and circumstances within his knowledge, and that he was not put off from his guard, or from inquiry, by any misrepresentations or otherwise." Second. That the mortgage executed by Mrs. Kleepfel to Horrman was given to secure a pre-existing debt, and nothing was parted with by said Horrman on the faith of the mortgage at the time the same was executed.
As we have reached the conclusion that this judgment must be affirmed on the first ground stated by the court below, it is unnecessary to examine or pass upon the second ground. *472
The court does not find, and we think there is no evidence in the case which would have justified a finding that the defendant Horrman had express notice of the existence of the plaintiff's mortgage. But the court does find that the defendant knew that Mrs. Kleepfel had no means of her own, either to pay or to secure the payment of the purchase-money. He also knew that she was in possession of the premises, a portion of the purchase-money remaining unpaid. As he is presumed to know the law, he must be deemed to have known that the vendor had a lien upon the premises conveyed for such part of the purchase-money as remained unpaid or unsecured. We think the defendant, under the circumstances of this case, was bound to show that at the time he made the last advance to Mrs. Kleepfel he acted under the belief that the advances made by him were sufficient to pay in full the purchase-price of the property. We have carefully read the evidence and fail to find any thing therein which would warrant the inference that the defendant acted under such a belief. He did not agree to advance to Mrs. Kleepfel money sufficient to pay for any property which she might purchase and then take a mortgage on the property that he had paid for. The language of Mrs. Kleepfel is: "I asked him if he would let me have some money; he said yes, if I should buy any thing he would let me have some money." And at the time the last advance of $500 was made, in August, she testifies: "I asked him for $500 before he went away. I told him I couldn't pay any thing in a short time, because I had to pay $500 to the other man in September; I told him I hadn't got any money, and that I must have $500 more, and if he would I would give him a mortgage." He said: "If you will give me a mortgage I'll give you the $500."
"Q. Did you tell him what you were going to do with that $500? A. That I wanted to pay it on the place. Q. Then he did know that you owed something on the place? A. I told him I had to pay $500 on the place now." This evidence is not contradicted by the defendant, and we find in it no statement or suggestion by Mrs. Kleepfel that the $500 would pay all that was due upon the place. On the contrary, it conveys *473
to the defendant a distinct notice that the purchase-money was then unpaid; and the language, "I told him I had to pay $500 on the place now," is suggestive that more was to follow; at all events, knowing, as the defendant did, that nothing had been paid upon the place except the money advanced by him, and being informed of facts which amounted to a notice that the vendor still had a lien upon the property for unpaid purchase-money, we think he was bound to inquire as to the extent of that lien. Notice sufficient to make it the duty of a purchaser to inquire, and failure so to do when information is easily accessible, is equivalent to actual notice within the rule of the authorities. In Williamson v. Brown (
In Kellogg v. Smith (
We think the defendant must be deemed to have had notice of the plaintiff's lien, and the judgment should, therefore, be affirmed, with costs.
All concur, except ANDREWS, Ch. J., and EARL, J., not voting.
Judgment affirmed. *476