2 Johns. 510 | N.Y. Sup. Ct. | 1807
This is an appeal from a decretal order of the court of chancery, establishing the right of the respondent to have his debt satisfied out of the mortgaged premises, notwithstanding the sale to one of the appeliants.
If this was the real truth of the transaction, the mortgage would, undoubtedly, as against Shelden, include the interest conveyed by the lease of the 1st of August. A conveyance will, in many cases, be deemed to relate back to the time when the-agreement for it was concluded, and render valid any intermediate disposition of the land. (Jackson, ex dem. the loan officers of Rensselaer, v. Bull, April term, 1799.) If this was now a question at law between Siagg and Shelden, I believe it would not be
But this is a contest between Stagg, and a subsequent bona,fide purchaser; and it is contended, that the appellants do not stand in the place of Shelden, but on higher and firmer ground, and are entitled to full protection against this antecedent encumbrance. The solidity of this pretension is the point which we have to discuss and decide.
In the first place, there was a suggestion of'fraud or collusion between Stagg and Shelden, to the injury of Mrs. Johnson,- but nothing of this kind was made out in proof, and the mortgage is shown to have been given bona-fide, and for a valuable consideration. Though it be admitted, that there are circumstances in the case which might lead us to favour, as much as possible, the title of Mrs. Johnson, as being an innocent purchaser, who had, the day before, searched the records, yet as no testimony warrants the charge of fraud, it is impossible for this court to make that conclusion, because it would be unjust to
It is again said, that as Stagg, the mortgagee, left the new lease after the 1st of August, or left Washburn’s lease at the time, in possession of Shelden, the mortgage became void as against a subsequent purchaser, without notice, because, by leaving the lease in possession of Shelden, he left with him the means to impose upon strangers who might have, no knowledge of the encumbrance. But there is no evidence that Stagg knew of the actual execution of the new lease at the time it was made; and if he had known of it, he had no means to obtain the possession of it, as he had advanced this money, and taken his mortgage some time before. If, however, that lease had been in esse, when the mortgage was given, I am of opinion, it would not have been requisite for Stagg to have taken possession of it; and that the English law requiring the mortgagee to receive the title-deeds as a deposite, does not apply here. As this is an important question in itself, and the determination of it, perhaps, decisive in the present cause, I must beg the patience of the court, while I bestow on it a more particular attention.
The reason of the English rule is, to protect subsequent purchasers and mortgagees, because, by leaving the title-deeds with the mortgagor, the mortgagee enables him to commit a fraud. (2 Cruise’s Digest, 202.) Our statute, for the registry of mortgages, is a valuable and salutary substitute for the English practice of depositing the title-deeds, and it has effectually secured subsequent purchasers and mortgagees from all such mischief. But the point in dispute, in the present case, is, whether this act applies as well to mortgages of leasehold estates, as of estates of inheritance and for life. The words of the statute are, mortgages of any lands, tenements, and heredita
Having considered this point, the next question is, whether the registry of a mortgage is not, in judgment of law, notice of such mortgage to all subsequent purchasers and mortgagees. This, I think, must be considered as a clear proposition. The provision in the act, that no mortgage, unless duly registered, shall defeat the title of a bona fide purchaser, shows the intent of the law to be, that subsequent purchasers must take notice, at their peril, of all registered mortgages. This has been the received construction, and, probably, the universal understanding on the subject.
With these propositions before us, how stands the equity of the claim of the appellants? Mrs. Johnson pur
I am accordingly of opinion, that the decretal order below ought to be affirmed, and the cause remanded.
This being the unanimous opinion of the court, it was thereupon ordered, adjudged, and decreed, that the decree of his honour the chancellor be affirmed, with costs; and that his honour the chancellor cause the mortgaged premises to be sold for the satisfaction of the debt and interest, which shall be found due to the respondent, on the said bond and mortgage, with his costs in the court of chancery, and in this court; and (hat the surplus, if any, arising from such sale, be paid to the appellants, and that the proceedings be remitted, &c.
Judgment of affirmance.
It is not necessary, within any of the registry acts, that the assignment of a mortgage should be recorded. The recording of such assignment is not notice to a mortgagor, so as to render payments by him to the mortgagee in his wrong. 2 Cowen, 246.