50 Conn. 517 | Conn. | 1883
This is an action to foreclose a mortgage. The mortgage was given May 27th, 1867, and not recorded till March 22d, 1877. On the 1st of April, 1876, the defendant took a mortgage covering the same property, and in October following took another mortgage, both of which were recorded in a reasonable time. The plaintiff insists that his mortgage should have the preference on the ground that the defendant took his mortgages with knowledge of that of the plaintiff.
The finding shows that the defendant, who is an attorney-at-law, was the scrivener who drew the mortgage deed which the plaintiff now owns, was a witness to it, and was the magistrate who took the acknowledgment. It is also
The defendant claims that the ruling of the court was .erroneous, and that is the sole question presented by this ■appeal. On this subject Stobt says:—“This doctrine, as to postponing registered to unregistered conveyances upon the ground of notice, has broken in upon the policy of the registration acts in no small degree; for a registered conveyance stands upon a different footing from an ordinary conveyance. It has, indeed, been greatly doubted whether courts ought ever to have suffered the question of notice to be agitated as against a party who has duly registered his conveyance. But they have said that fraud shall not be permitted to prevail. There is, however, this qualification upon th.e doctrine, that it shall be available only in cases where the notice is so clearly proved as to make it fraudulent in the purchaser to take and register a conveyance in prejudice to the known title of the other party.” 1 Story’s Eq. Jur., § 398.
We do not think the circumstances of this case bring it within the doctrine as thus stated. The committee carefully refrained from finding that the defendant knew, when he took his mortgages, that the plaintiff’s mortgage was then outstanding. Without such knowledge there was no frauds The fact that he knew of the plaintiff’s deed nine years before is not equivalent to knowledge then, as there is no legal-presumption that such knowledge continued for a period of nine years so as to charge the partjr with fraud. When the-defendant wrote that deed he had no interest in the premises, and had no occasion to charge his mind with it. Drawing deeds is a part of the ordinary business of a practicing attorney, and something that he may have occasion to do several times in a day. If any man should remember the details;of a single transaction of the kind for nine years it
The plaintiff’s argument assumes that the defendant’s case depends upon the presumption that he had forgotten the circumstance. It is not a mere question of forgetfulness; the question is whether he had forgotten anything that he ought to have remembered. Unless he was under some obligation to remember he is not chargeable with negligence in not remembering. The law imposed no duty upon him and his interests did not require it.
If, while contemplating taking a mortgage on this property, he had been informed that the plaintiff’s mortgage was still outstanding, it would have been his duty to remember it. Due regard to his own interests and to the rights of others required him to remember it, and the law might properly impute knowledge to him; because the law supposes that a man will act with due regard to his own interests, and requires him to act with due regard to the rights of others. A failure to do so would evince a willingness, if not a desire, to defraud his neighbor, nr at least to get an advantage over him which would be inequitable and unjust. Nothing of the kind appears in this case.
In addition to these considerations there are some pre
Another circumstance we will notice in passing. When the plaintiff purchased his mortgage he did so with full knowledge that two of the defendant’s mortgages were first recorded; and it does not appear that he then knew that the defendant wrote that mortgage. So that, for aught that appears, he purchased with full knowledge of the apparent priority of the defendant’s equities. What effect that circumstance should have upon the present equities of the parties we will not now undertake to say.
■ For the reasons above given we think the judgment was erroneous and must be reversed.
In this opinion the other judges concurred.