Ely v. Scofield, 35 Barb. 330

Ely v. Scofield

35 Barb. 330 | N.Y. Sup. Ct. | 1861

By the Court, Welles, J.

I agree with the referee that the discharge of the mortgage in question by Brockway, the administrator of the mortgagee, after he had assigned the mortgage to the plaintiff, without payment and without authority from the assignee, had no other effect than to cancel the record of the mortgage, and left the plaintiff in the condition of the holder of an unrecorded lien upon the mortgaged premises. The validity of the mortgage was in no way affected by the discharge, excepting to take away its priority over the defendants’ deed. Brockway, the administrator, had really no more right to receive payment of the mortgage, or to satisfy it of record, than any other stranger. Payment was *334not made, and the satisfaction, as the referee finds, was acknowledged by mistake without payment, and without authority from the plaintiff, who was really the only person who had the legal right to acknowledge satisfaction of the mortgage. Brockway, the administrator, was nevertheless, ostensibly, the proper person to acknowledge the satisfaction, and his certificate was effectual, when properly recorded, to cancel the record of the mortgage, as against subsequent purchasers and mortgagees in good faith without notice.

But I am constrained to differ with the learned referee in the proposition that the direct notice to Scofield of the mortgage, given to him before his deed from Chappell was recorded, was equivalent to a record, and preserved the priority of the lien of the mortgage. That notice was given after he had made the purchase, paid his money and taken his deed. The transaction between him and Chappell, of the purchase of the mortgaged premises, was completed and his rights had become fixed. After that, a notice to him would be of no service whatever. The referee finds, distinctly, that the defendant Scofield was a hona fide purchaser from Chappell, the owner of the land, in good faith, for a valuable consideration, and without knowledge or notice of the mortgage held by the plaintiff. The revised statutes provide that every conveyance of real estate, within this state, shall be recorded in the office of the clerk of the county where such real estate shall be situated; and if not so recorded, shall be void as against any subsequent purchaser in good faith for a valuable consideration, of the same real estate or any part thereof, whose conveyance shall be first duly recorded. (1 R. S. 756, § 1, ch. 3, part 2.) By sections 36, 37 and 38 of the same chapter, (p. 762,) the terms “real estate,” “purchaser” and “conveyance,” as used in that chapter, are defined. “Beal estate” is defined to embrace, among other things, all chattels real, except leases for a term not exceeding three years. (§ 36.) A mortgage is a chattel real. (Burrill’s Law Dic. “Chattels real.”) The term “purchaser” embraces anas*335signee of a mortgage, or lease, or other conditional estate. (§ 37.) A mortgage is here contemplated as creating a conditional estate in land. The term “conveyance,” as used in tire chapter referred to, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened^ mortgaged or assigned, or by which the title to any real estate may be affected in law or equity; except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands. (§ 38.) By § 41 of the same chapter, (p. 763,) it is declared that the recording of an assignment of a mortgage shall not be deemed, in itself, notice of such assignment, to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee. The references to the statutes embrace all the provisions thereof which can be claimed to bear upon the questions involved in the present case. If the plaintiff occupies no better or more advantageous position than the holder of a prior unrecorded mortgage, it is quite plain to my mind that the title of the defendant Scofield to the premises embraced in his first deed from Chappell, and which bears date April 21st, 1858, and was recorded May 4th of the same year, is to be regarded and taken as prior to the lien of the mortgage held by the plaintiff and wholly discharged therefrom. The notice to Scofield was after that deed was executed and delivered, but before it was recorded. It was competent for the plaintiff to have put his assignment on record, and thus have protected himself against the satisfaction of the mortgage by Brockway. Such record would have been notice to all the world, excepting the mortgagor, his heirs and j>ersonal representatives. Scofield was neither mortgagor nor his heir or personal representative, and therefore not within the exception of the statute, ( Vanderkemp v. Shelton, 11 Paige, 37, 38,) but he was a subsequent purchaser in good faith, for valuable consideration. He is therefore within the express language of the first section of the chap*336ter referred to. His deed is recorded, and the record of the mortgage is canceled. The mortgage is, as to its priority over the recorded deed of Chappell to Scofield, the same as if it never existed. The notice, in order to have any effect upon him in respect to the land embraced in that deed, should have been given before the purchase.

[Monroe General Term, December 2, 1861.

But with respect to the portion of the mortgaged premises not embraced in Scofield’s recorded deed from Chappell, the lien of the plaintiff’s mortgage is prior and superior to Scofield’s title through his unrecorded deed. The parties stand upon equal grounds, as far as the record is concerned, and the statute only gives priority to a recorded conveyance; and the mortgage being anterior to the last deed, must prevail over it.

The judgment appealed from, so far as it subjects that part of the mortgaged premises described and embraced in the deed from the defendant Chappell to the defendant Scofield, dated April 21st, 1858, and recorded May 4th, of that year, to the lien of the mortgage from the defendant Carpenter to Phebe Brockway, dated March 19th, 1851, and assigned by her administrator to the plaintiff, is reversed, and the premises last referred to declared discharged and free from the lien, operation and effect of that mortgage. The lien of said mortgage upon the residue of the mortgaged premises to be declared valid and effectual. The defendant Carpenter to be charged personally with any deficiency that may appear by the sheriff’s report of sale, and none of the other defendants to be so charged. The judgment to be modified accordingly, and to be in all other respects affirmed.

Smith, Johnson and Welles, Justices.]