154 N.Y.S. 822 | N.Y. App. Div. | 1915
The action is brought to clear a complication and to foreclose a mortgage of $2,500 on real estate. Of the defendants, Hanley alone answered. She is the owner of the mortgaged premises, which she bought from Le Maire, who was the mortgagor. When Hanley bought, she was aware" that there was a mortgage upon the premises for $2,500, and she intended to take the premises subject to such a mortgage. The conveyance to her recited that the premises were “sold subject to a certain mortgage for the sum of Two thousand five hundred dollars, now a lien thereon,” and the court found that $2,500, the amount of plaintiff’s mortgage, was deducted from the purchase price. And she paid interest regularly for several years on such a mortgage, as a lien upon her premises and in accord with her undertaking. Some years before Hanley’s purchase, the said Le Maire had made a mortgage to Killough for $2,500. When it fell due, Killough sought payment, and thereupon Le Maire lifted the mortgage. For this purpose Le Maire made the present mortgage to the plaintiff Moore. Killough was paid, and executed a satisfaction piece and an assignment, which were delivered to Price, then the plaintiff Moore’s attorney. Price did not record the satisfaction piece, the assignment or the new mortgage. Price was a wrongdoer, and when ultimately his doings were brought to light these omissions were discovered. The mortgage was taken from him and then recorded, but this was ten years after the purchase by Hanley and the record of her conveyance. Price could not or did not produce the satisfaction piece or the assignment. The complication that arose' from Price’s misconduct was that Killough’s mortgage was still of record, the satisfaction piece and assignment could not be found, and
If Hanley is sustained, then, as incident to her legal right, she
I think that Hanley is estopped from questioning the legality of the incumbrance or the lien of the plaintiff’s mortgage. She understood that the premises were subject to a mortgage for $2,500, and she bought them subject to such a mortgage. And within 10. days after the conveyance to her she was informed, upon inquiry of Le Maire, that the interest on the mortgage must be paid to the plaintiff Moore, through her counsel Price, and thereupon and thereafter for several years Hanley thus paid interest upon the plaintiff’s mortgage. (See Thomas Mort. [3d ed.] § 520; Jones Mort. [6th ed.] § 575; Wilt. Mort. Forec. § 460.) I think that the mortgage is not void as to Hanley perforce of its record after the conveyance to Hanley and its record. .Hanley relies upon section 291 of the Eeal Property Law. But Hanley had actual notice of an incumbrance and a lien by mortgage in the amount of plaintiff’s mortgage. {Butler v. Viele, 44 Barb. 166; Lamont v. Cheshire, 65 1ST. T. 30, 40 et seq.j Dingley v. Bon, 130 id. 607.) The answer to the contention that Hanley did not know the particulars thereof is that “ It is not necessary to show express notice of the particular instrument, but notice of any fact calculated to put a party upon inquiry is, in the absence of explanation, sufficient to charge him with notice of all instruments which an inquiry would have disclosed. The degree of notice required is, in the language of the authorities, such as ‘would lead any honest man using ordinary caution to make further inquiries.’” (See Thomas Mort. [3d ed.], §§ 515, 516, and authorities cited; Jones Mort. [6th ed.] § 574; Wilt. Mort. Forec., supra.) Hanley satisfied herself by inquiry of Le Maire
But Hanley complains that the judgment is increased by costs and an allowance. While this matter was within the discretion of the Special Term, it is not free from our scrutiny. Hanley was not blamable for insistence that the complication caused by plaintiff’s former attorney, Price, should be cleared away by the plaintiff, and any obligation to the plaintiff be determined, defined and declared by the courts. And if her appearance and resistance in this .action had been limited to such contention, then her complaint against the costs and the allowance might be cogent. And even, after the suit was brought, she might have had her remedy by application to the court under the authority of Lewis v. Robinson (78 App. Div. 579), wherein was approved the rule of Bartow v. Cleveland (16 How. Pr. 364). But Hanley denied and litigated the validity of the mortgage itself, and we cannot say that the Special Term erred in its discretion when it awarded costs and an allowance.
The judgment is affirmed, with costs.
Thomas, Mills, Rich and Putnam, JJ., concurred.
Judgment affirmed, with costs.