80 N.J. Eq. 342 | New York Court of Chancery | 1912
This is a foreclosure suit. The defendants executed a mortgage to one Feick on April 28th, 1906, for $6,500. Feick assigned it to complainants. The assignment was recorded on September 7th, 1906. The bond, mortgage and assignment were all delivered to the assignees before any payments wore made by the mortgagor. The interest was paid to Feick up to the time of his death, in the-year 1911, and Feick transmitted it to the assignees. The mortgagors, from time to time, paid Feick installments of principal aggregating $4,500. Feick retained- these latter and gave the assignees instead the full amount of interest on the original principal. The assignees did not authorize Feick to receive the principal and did not know it was being paid. On the other hand, the mortgagors had no notice of the assignment other than the constructive notice arising- out of the record. The question is, which of these two innocent parties, the mortgagors'or the assignees, shall bear the loss occasioned by Feick’s misfeasance.
If section 32 of the Mortgage act, as revised in 1874, is in force, the mortgagors must bear it. If that section has been annulled by the act respecting conveyances (Revision of 1898), then it would seem as if the 'assignees must do so.
X think, as far as this court is concerned, the case must he ruled by the principle of the decision in Brown v. Harris, 67 N. J. Law (38 Vr.) 207. The supreme court there had under consideration the same sections of the Conveyances act. Among the instruments that might he recorded pursuant to section 21 of that act were chattel mortgages and assignments of mortgages on real estate. Section 5i provides that every deed or instrument of the nature or description set forth in section 21 shall, until duly recorded, be void and of no effect' against subsequent judgment creditors without notice, and against all subsequent bona tide, purchasers and mortgagees not having notice. Comp. Stat. p. 1553. The Chattel Mortgage act of 1885 (Gen. Stat. p. 2113)
The present case involves the closely-related subject of notice.
The Conveyances act of 1898 declares, in section 53, that the record (inter alia) of assignments of mortgages shall be notice to ail subsequent judgment creditors, purchasers and mortgagees of the execution of the instrument and its contents, while section 32 of the Mortgage act of 1874 declares that the recording of the assignment shall be notice "to all persons concerned” that said mortgage is so assigned. If the more comprehensive provision in reference to the effect of not recording a chattel mortgage is not, by implication, repealed by section 54, I do1 not see how the more comprehensive provision in reference to the effect of recording assignments can be repealed by section 53.
The rationale of the decision in Brown v. Harris appears to be this: implied repealers are not favored. Hotel Registry Corporation v. Stafford, 70 N. J. Law (41 Vr.) 536. A repealer is less readily implied in the ease of a revision or compilation than in the ease of a subsequent statute, which, standing by itself, appears to formulate a complete scheme covering the subject-matter of the earlier act. Haynes v. Cape May, 52 N. J. Law (23 Vr.) 180, 132: De Ginther v. New Jersey Home, 53 N. J. Law (29 Vr.) 358. Only a part of the statutory law regulating chattel mortgages was the subject of revision in the Conveyances act. What was apparently intended by section'54 was to give to the failure to record the entire and somewhat heterogeneous group of instruments brought together in section 21, an uniform effect, leaving to the non-record of particular members of that group that further and wider effect which prior legislation had ascribed to it.
As the later provision requiring the arbitrator’s oatli to be administered by a judge or justice did not, b}r implication, nullify the earlier one; so, by parity of reasoning, the later declaration that the record should be notice to subsequent judgment creditors, purchasers and. mortgagees, did not, by implication, prevent the recording from being notice to “all persons concerned.”
The words “all persons concerned”-have been held to include mortgagors on the one hand (Emery v. Gordon, 33 N. J. Eq. (6 Stew.) 448) and assignees on the other. Mott v. Newark German Hospital, 55 N. J. Eq. (10 Dick.) 722.
The question is, no doubt, a very close one, and so important, in, its effect on titles, that it should be set at rest by tlie court of last resort.