54 N.J. Eq. 519 | New York Court of Chancery | 1896
■ The bill in this case is filed to foreclose a mortgage for $2,500 with interest, given to the complainant, a building ánd loan association, by the defendants Emma J; Knowles and Francis W. Knowles, her husband, upon premises conveyed to Mrs. Knowles by A. L. Van Blarcom, and the question is whether, for the whole or any part of this sum of $2,500, the association mortgage is a lien prior to a mortgage of $5,000 given to the vendor by Mr. and Mrs. Knowles to secure part of the purchase-money of the premises. This mortgage to the association, which bears the same date as the deed from Van Blaroom to Mrs. Knowles, refers to the premises as conveyed to Mrs. Knowles by that deed, and then recites that “it is given to secure the payment of part of the purchase-money mentioned in said deed which has been advanced by the said association.” The whole purchase-price of the property was, in fact, $6,000, and upon the delivery of the deed a payment of $1,000 in cash was made and a mortgage by Mr. and Mrs. Knowles to Van Blarcom for $5,000, the balance of the purchase-money, was delivered to the attorney of the vendor, Van Blarcom. The complainant, before the delivery of the deed, advanced to the purchaser the sum of $1,000, and subsequently to the delivery of the deed advanced the further sum of $1,500. The $1,000 advanced before the delivery (or its proceeds) was used for making the cash payment on the purchase to the vendor, but the $1,500 afterwards advanced was not, nor was any part of it used for purchase-money. The grantor, Van Blarcom, who was an uncle of Mr. Knowles, the husband of the grantee, lived in California, and after executing the deed there, on the 15th of
No evidence whatever has been produced in support of this latter allegation, nor was Mr. Knowles called to contradict the statements of Mr. Parker, Van Blarcom’s attorney, in reference to the occurrences at the time of the delivery of the deed. These statements show that the deed and purchase-money mortgage were delivered by Mr. Parker to Mr. Knowles, to be recorded together, and that Mr. Parker, in consenting to this arrangement, relied upon Mr. Knowles’ professional integrity and upon his relationship to Mr. Van Blarcom. At the time of the delivery of the deed and mortgage, Mr. Parker had no information, or even cause for suspicion, that Knowles and his wife had already executed a mortgage to complainant upon the premises, nor is there any evidence that Van Blarcom, the vendor, knew that any such mortgage was proposed. One of Mr. Knowles’ letters to Mr. Parker, dated on March 5th, 1892, refers to a letter of Van Blarcom to Knowles, dated February 2d, 1892, in which (as Knowles writes) Van Blarcom denies that he made any agreement that his (Van Blarcom’s) mortgage should be a second mortgage, but this letter of Van Blarcom’s was not produced.
No agreement for postponement of the purchase-money mortgage being shown, the question in the case is whether, for the whole or any part of the money advanced upon its mortgage, the. complainant is to be preferred to the purchase-money mortgage.
The complainant bases its right to preference upon the claim
The facts in’the case show, in my judgment) that Knowles was not the agent or attorney of the complainant in any part of the transaction,- and the question of notice -to the complainant depends upon the knowledge or Information received by Mr. Smith, the regular attorney of the association, who was the only person acting for the complainant in reference to the loan. - No proof of any actual notice of defendant's mortgage,- on the part of Mr. Smith, is.shown, and his own-statement,--under oath, when called as defendant’s witness, was, that before the mortgage of the association was taken he did not know from Mr. Knowles that he proposed to give his uncle a mortgage for any part of the purchase-money. Knowles, in his letter of March 5th, 1892, to Parker, above referred to, had stated that-before executing the two mortgages he had talked over the matter with Mr. Smith, but Mr. Smith, being-asked on the witness-stand as to his conversations with Knowles, said that he had many conversations with him, but that he had no conversation with him about there being two mortgages, and that he does not recollect any conversation with Knowles, prior to the mortgage, that the mortgage he gave to him (Smith) should be prior to the mortgage he intended to give to Van Blarcom for the balance of the purchase-money. Knowles was not called by the defendant nor was he examined by complainant except upon the question of agency.
In the absence, therefore, of proof of actual notice of the Van Blarcom mortgage on the part of Mr. Smith, the whole question as to such notice depends upon whether the association is, as to any part of the sum secured by its mortgage, to be charged with constructive notice of the existence of the Van Blarcom mortgage.
The provisions of the Registry laws, validating unrecorded deeds or mortgages in favor of subsequent grantees or mortgagees, are not construed to require actual notice of the unre
The defendants’ counsel contends, that the complainant is to be' so charged with constructive notice because- the evidence in the case shows that Mr. Smith, the complainant’s attorney, had actual information of facts which, as he insists, were sufficient to put him upon inquiry as to whether the purchase-money was paid; that such inquiry, if it had been prosecuted, would have led to the disclosure of the existence of the purchase-money mortgage; that the failure to prosecute such inquiry was negligence upon the part of complainant’s attorney or agent, and, as a result, the, complainant must be now charged with notice of the fact which vrould have been disclosed but for the negligence of its attorney. The additional facts in the case, bearing upon this question of the delivery of the mortgages, are as follows, Mr. Smith’s connection therewith being specially stated wherever it occurred: ;
On December 7th, 1891, Knowles, who had prepared the deed from , his uncle, Van Blarcom, enclosed it to the latter in California, by letter of that date, for execution and acknowledgment. The deed was dated December 15th, 1891, and'was acknovvledged on that day by Van Blarcom, in California. • ■ .
On the same day, Van Blarcom enclosed the deed to Messrs. Coombs, Crosby & Eddy, of New York, with directions to. deliver to Mr. Knowles and receive from him $1,000 cash, and a mortgage on the property for $5,000, payable in two years, duly executed, and directing the employment of Mr. Parker. On January 2d, 1892, Knowles wrote Coombs, Crosby & Eddy that Mr. Van Blarcom had written him that he had placed with them a deed for land in Summit, New Jersey, and had authorized them to deliver the same to him on receipt of $1,000 cash and a mortgage- for $5,000, and stating that he would call upon them Monday, January 4th, between three and four o’clock in the afternoon, prepared to close the transaction. What communication had passed between Knowles and the association previous to this time, January 2d, 1892, in reference to applying for or
The complainant’s mortgage was, as Smith states, drawn by Knowles, in order to save the expense of Smith’s drawing it, Knowles giving Smith the date of his deed, and Smith also witnessed the execution of the mortgage. The source from which this information as to the true date of the deed was derived by Knowles, so that he could communicate it to Smith in time to .insert the date and execute the mortgage on the 4th of January, does not appear, but Smith says that Knowles told him the'deed was in New York, or he was going to New York for it. He further says: " •
“I told Knowles in drawing the mortgage to make it a purchase-mpney mortgage, and whatever of the money is necessary to get your deed you can pay to your uncle, and the making of it a purchase-money mortgage will avoid the necessity of searching for judgments against your wife.”
The purchase-money clause was inserted and no searches for judgments against Mrs. Knowles were made. Smith relied on Knowles for the searches. ’ Smith also says that he didn’t know how much of the $2,500 Knowles required, or whether he required all to get his deed, but that, on the following Saturday, January 9th, Knowles told him that he needed $1,000 of the money to get his deed, and that he (Smith) then went to the treasurer of the association and asked him for a check for the
Smith had retained the association mortgage in his possession since its execution on the 4th of January, and had, in the meantime, received from the association a check for $1,500, the balance of this loan. Upon receiving the deed from Knowles, he endorsed over this check and handed.-it to Knowles, without making any search for mortgages by the' purchasers since the date of the deed or of its delivery, ■ and without, as he says, making any further inquiry whatever of Knowles as to the payment of any part of the purchase-money. ■ . . .
In reference to his knowledge of the financial condition of Knowles at'this time. Mr. Smith says; .that" the' ,$1,000 which
Under this state of facts it is clear, I think, that as to the $1,000 which was advanced prior to the delivery of the deed, the association mortgage cannot be preferred to the purchase-money mortgage. A purchaser who receives a deed, and, as part of the same transaction, delivers a mortgage to the vendor for part of the purchase-money, has, so far as that mortgage is concerned, only such an instantaneous and temporary seizin that the purchase-money mortgage must be superior to all conveyances or encumbrances executed prior to the inception of his estate. This is the law as settled in reference to prior judgments, mechanics’ liens and .other prior claims against the purchaser (Wallace v. Silsby, 13 Vr. 1 (at p. 8 &c.), and cases cited; Clark v. Butler, 5 Stew. Eq. 664), and must, for the same equitable reasons, be applied to mortgages on the property executed by a mortgagor before he receives his deed. As was said by Chief-Justice Church, in Dusenbury v. Hulbert, 69 N. Y. 541, 545: “A vendor of real estate has no occasion to examine the records for encumbrances created prior to his conveyance. He has the power to protect himself by a qualified or conditional transfer or by any legal mode of creating a lien to secure himself for unpaid purchase-money. When he conveys and instantly takes-a conveyance as such security, no-authority is needed to demonstrate the gross injustice of permitting a prior mortgage from intervening to his prejudice.” In this case there was nothing to put the vendor or his attorney upon inquiry, nor was either of them, under the circumstances of this ease, charged with any duty of inquiry in favor of any prior claimant under the purchaser, whether by mortgage or otherwise.
As to this $1,000, it should also be noticed that the Mortgage
As to the $1,500 advanced after the delivery of the deed and of the Van Blarcom mortgage, the complainant is, to this extent, clearly a subsequent mortgagee for a valuable consideration, and, inasmuch as, at the time of the advance and of the subsequent record of its mortgage, the Van Blarcom mortgage had not been recorded, the complainant is, by reason of priority of record, entitled to priority to this extent, provided it is, within the language of the statute, a bona Jide mortgagee “ not having notice ” of the defendant’s mortgage. And, as is well settled, the com
The Van Blarcom mortgage, moreover, might have been protected in this case under the Registry laws, by recording it immediately, even if the deed were not recorded. Under the rule settled in Semon v. Terhune, 13 Stew. Eq. 364 (Chancellor Mun-yon, 1885), a subsequent mortgagee is bound to search the records-for mortgages subsequent to the date of his mortgage, even if his mortgagor’s deed is not recorded. ■!
And where, under the Registry laws, a vendor’s mortgage may be fully protected by a prompt registry, it would be against the policy of these laws to impose on a subsequent purchaser or mortgagee the duty of protecting prior rights by inquiry. These prior rights may, under the laws, be fully protected by record, and, as was said by Lord Selborne in Agra Bank v. Barry, L. R. 7 E. & I. App. 135, 157, the fact that statutes so provide is one fact or circumstance to be considered in determining whether and to what extent the duty of inquiry arises, and is always a fact of great importance. It is, in my judgment, the fact which, in connection with Mr. Smith’s denial of notice, turns the scale in the present case, for, although there are some circumstances in the evidence from which it may perhaps fairly be argued that Smith, on making the advance of the $1,500, did not make all the inquiries which a more cautious attorney and one who placed less reliance on Knowles would have made as to the payment of the whole purchase-money, yet these circumstances do not seem to me sufficiently decisive to dislodge complainant’s mortgage as to the $1,500 from the strong position of priority given to it, prima fade, by the statute, supported as this is by the oath of Mr. Smith, the only witness called to speak directly upon the question of knowledge. The defendant might •have called Knowles as well as Smith as his witness, and, although not obliged to do so, the failure to call the only other witness who had actual knowledge of the transaction imposes on the defendant. I think, the burden of showing that the indirect
