MILLICENT L. PURDY, Administratrix, &с., of BENJAMIN H. PURDY, deceased, Appellant, v. CALVIN HUNTINGTON, impleaded with JOSEPH S. MITCHELL and another, Respondent.
Commission of Appeals of the State of New York
June 21, 1870
Re-argument ordered December, 1869, and cause re-argued March 24th, 1870; decided June 21st, 1870.
42 N.Y. 334
If, however, I am mistaken in that construction, I can see no ground for holding that wearing apparel or articles purchased for his wife or girl in his family, much less for his “landlady,” neither of whom accompanied him on his journey, constituted a part of his personal baggage, and the court erred in permitting a recovery therefor. The judgment must be reversed and a new trial ordered, costs to abide the event.
For affirmance, as modified, SMITH, GROVER, FOSTER and INGALLS, JJ., and EARL, Ch. J.
For affirmance without modification, SUTHERLAND, J.
For reversal, LOTT, J.
HUNT, J., concurred with LOTT, J., as to the cloth for dresses.
Judgment affirmed as amended.
The assignee of a recorded mortgage upon real estate, which real estate was conveyed by the mortgagor to the mortgagee, after the assignment, holds a valid lien thereon, as against a purchaser from such mortgagee, who purchases without knowlеdge of the assignment, although the conveyances, both to the mortgagee and from him to the purchaser, were recorded prior to the recording of the assignment.
The conveyance to the mortgagee, after assignment, is not a merger of the mortgage; nor can the conveyance by the mortgagee, although recorded before the recording of the assignment, operate as a transfer of the mortgage, so as to be deemed a subsequent assignment thereof, within the recording act.
(Re-argument ordered December, 1869, and cause re-argued March 24th, 1870; decided June 21st, 1870.)
APPEAL from an order of the General Term of the Supreme Court in the seventh district, granting a new trial, and reversing a judgment in favor of the plaintiff‘s intestate, entered upon the report of Honorable Addison Gardiner, referee.
This action was brought to foreclose a mortgage given by Joseph S. Mitchell to Minott Mitchell and assigned by him to the plaintiff‘s intestate. The issues joined therein were referred for trial and decision to Addison Gardiner, from whose findings the following facts appear. The mortgage and a bond accompanying it bear date the 4th day of June, 1855, and were executed to secure the payment of the sum of $2,000 in three years from the date thereof, with interest thereon at the rate of seven per cent per annum, payable semi-annually, and they were assigned by an assignment in writing of the same date. The mortgage was recorded on the 28th day of the same month of June, but the assignment was not recorded till the 19th day of February, 1864. Both were recorded in the book of mortgages. In the intermediate time, and on the 10th day of July, 1858, Joseph S. Mitchell, the mortgagor, by a deed of that date, which was recorded on the 6th day of October, 1859, conveyed the mortgaged premises to Minott Mitchell, the mortgagee, who, on the 3d day of October, 1859, and previous to the record of the conveyance to himself, sold and conveyed the same by a deed of
When the conveyance of Joseph S. Mitchell to Minott Mitchell was executed, both of them knew that the said bond and mortgage had been assigned and delivered to the plaintiff‘s intestate, and that they were then in his possession as valid and subsisting securities, and they were recognized as such by Minott Mitchell at the time of his conveyance to Huntington by an agreement, bearing even date therewith, entered into by and between him and the plaintiff‘s intestate, declaring the amount of principal then due thereon, and providing for an extension of the time for its payment by installments from time to time, and he continued to pay interest thereon until the time of his death in the spring of 1862; but Huntington had no actual knowledge or information of the existence or assignment of the said mortgage, or either of them, when he took his deed, and he had not made any search or examination of the records or caused any to be made with a view of ascertaining the state of the title to the property or whether there were any incumbrances thereon, nor had he made any inquiry as to such incumbrances on the premises, of any one except the said Minott Mitchell, by whom he was informed that there were no incumbrances, and that the title was good, on which information he relied, believing the same to be true.
On these facts the referee directed the usual judgment of foreclosure and sale, which was reversed on appeal by the General Term in the seventh judicial district. An order for a new trial was granted, and the case comes before this court on an appeal from that order, with the usual stipulation in case of affirmance for judgmеnt absolute against the appellant.
Samuel Hand, for the appellant, insisted that the doctrine of merger had no application, as the mortgage interest and equity of redemption never met in the same person, citing Campbell v. Vedder (3 Keyes, 174).
Noah Davis, Jr., for the respondent, cited Fountain v. Pettee (38 N. Y., 184); Ely v. Schofield (35 Barb., 330);
LOTT, J. It was claimed by the defendant, Calvin Huntington, in his answer and on the trial, that the mortgage in
The question is then presented, whether Calvin Huntington can be protected in his title as against the mortgage by reason of the omission to have the assignment thereof recorded.
It is conceded that he is to be charged with constructive notice of the existence of the mortgage, and of the continuance of its lien, by its record in the proper office. By that he was informed not only of the date of the mortgage, the amount secured thereby, and of all its particulars, but that it was open and uncanceled of record, and therefore apparently an outstanding lien and incumbrance on the premises of which he was taking title. Having that information, he knew or was at least chargeable in law with the further notice, that it was such lien and incumbrance in the hands of any person to whom it had been legally transferred, and that the record of such transfer was not necessary to its validity, nor as a protection against a purchaser of the property mortgaged or any other person than a subsequent purchaser in good faith of the mortgage itself or the bond or
Having no aсtual knowledge of the existence of the mortgage, and having, by his neglect to examine the records, failed to obtain the notice which they would have given him, he incapacitated himself from making specific inquiries in relation to it, and, as was well said by the learned referee, in his well considered and able opinion, “he cannot now insist that the plaintiff‘s security should be set aside in his favor. If, by the neglect of the plaintiff to record his assignment, the parties are equally in fault, the plaintiff having the prior equity must prevail.”
The General Term of the Supreme Court, if I correctly understand the opinion of the learned justice who delivered it, on the reversal of the judgment founded on the referee‘s decision, appear to have based that reversal on the ground that the records justified the conclusion and warranted Huntington, when he took his deed, in the assumption that Minott Mitchell had not parted with the mortgage and had taken the title in extinguishment of it. He says: “The referee correctly held that the rights of the defendant, Calvin Huntington, as a purchaser of the premises embraced in the mortgage previously assigned by his vendor to the plaintiff, are to be determined by the records in the clerk‘s office, and the facts fairly to be inferred from what was there stated.”
It will be seen, from the statement of the learned judge, that he has assumed as a fact shown by the records, that the conveyance from Joseph to Minott Mitchell was recorded when Huntington made his purchase and took his title. In that, he was mistaken. It appears by the findings of the referee, and the fact is conceded by the learned justice, “that on the 10th day of July, 1858, the said Joseph S. Mitchell conveyed by deed to said Minott Mitchell the premises described in the mortgage above mentioned.” It is then further found by him that this deed was recorded on the 6th day of October, 1859, and that finding is supported by the production of the deed in evidence by the defendant; and it also appears by such findings that on the 3d day of October, 1859, Minott Mitchell sold and conveyed the said mortgaged premises to the defendant, Calvin Huntington, by deed with covenant of warranty; and it is shown by the deed, also read in evidence by the defendant, that the deed was dated and acknowledged on the said 3d day of October, 1859, and was recorded in the book of deeds on the 9th day оf January, 1862.
It thus appears, that the records, instead of showing the deed from Joseph to Minott Mitchell to have been recorded on the third day of October, 1859 (the day on which Huntington took his deed), as assumed by the learned justice in his opinion, did in fact show, that it was not recorded until the 6th day of October, 1859. The whole of the reasoning and argument, as well as the conclusion based on that assumption, must fall, when the foundation on which they rest is swept away.
It may, however, be urged that if Huntington had actual knowledge, or notice of the existence of the deed from Joseph to Minott Mitchell, it is better than the constructive notice with which he would have been chargeable from its record. Conceding that proposition to be true, it does not aid him. There is nothing to show that he had actual knowl
The information conveyed by that statement was, that the title he had was under that master‘s deed, given in 1844, and that he had continued to own it since that time, and nothing was communicated from which it could be understood or in any manner inferred that he had parted with the titlе to Joseph, and that he had subsequently received a reconveyance thereof from him.
There is, therefore, nothing to warrant the conclusion from any of the facts actually known to Huntington, or of which
It may be proper to consider the case in another aspect. Assuming that Minott Mitchell might, in the absence of actual notice of the assignment, be considered and treated as the owner and holder of the mortgage, and that the deed from him, as was suggested on the argument, would operate as an assignment thereof to Huntington (but which I by no means admit, and is contrary to what is said in Wilson v. Troup, 2 Cowen, 195, 230, &c., by Woodworth, J.), the title of the plaintiff would nevertheless be superior to his. The deed was recorded in the book of deeds. That record was inoperative and ineffectual as the record of an assignment of the mortgage and conferred no rights as such on Huntington as assignee. See
Each of the parties, on that state of facts, would have held an unrecorded assignment, and that first given would prevail and have preference.
If the views above expressed are correct, the order of the General Term is erronеous, and should be reversed with costs, and that of the Special Term must be affirmed with costs.
SUTHERLAND, J. On the 4th of June, 1855, Minott Mitchell being seized in fee of certain lands, sold and conveyed them to his son, Joseph S. Mitchell, who at the same time executed back to Minott Mitchell a bond in the penalty of $4,000, conditioned to pay to him $2,000, the purchase money, with interest, and a mortgage on the lands to secure the payment of the bond.
About three years after such assignment, and on the 10th day of July, 1858, Joseph S. Mitchell reconveyed the lands to Minott Mitchell. Subsequently, and on the 3d day of October, 1859, Minott Mitchell sold and conveyed, by a deed with covenant of seizin and warranty, the lands to the defendant and appellant, Calvin Huntington, for a valuable consideration paid therefor by said Huntington, who took such conveyance and paid such consideration without any actual notice or knowledge of the mortgage which had been so assigned to, and was then held by Benjamin H. Purdy, and without making or causing any search of the records, relying upon Minott Mitchell‘s representations thаt he had a good title, free from incumbrances.
The mortgage was duly recorded on the 28th of June, 1855. The deed, or reconveyance, from Joseph S. Mitchell to Minott, was duly recorded on the 6th of October, 1859. The deed to Calvin Huntington was duly recorded, the 9th of January, 1862. The assignment of the bond and mortgage to Benjamin H. Purdy was not recorded until the 19th day of February, 1864, on which day it was duly recorded. The question, and the only question in this case is, did Benjamin H. Purdy‘s mortgage become void, and he lose his mortgage, security, and lien, by neglecting to have his assignment recorded until after Calvin Huntington‘s deed had been recorded.
The question I have stated, as the only question in the сase, is really nothing more or other, than a question as to the construction of certain portions or provisions of the recording act (
Is this not too plain to require an illustration? A sells and conveys land to B. B gives back a bond and mortgage for the purchase money. A sells and assigns the bond and mortgage to C, and afterward receives a conveyance of the equity of redemption from B, and then by a full covenant deed, conveys the land, and all his estate and interest in the land to D.
Now, the conveyances, and the bond and mortgage, and their assignment, being left to their common law force and effect, does not D, irrespective of any recording act, necessarily take his conveyance subject to C‘s mortgage? Could A convey to D any more than the equity of redemption? Could his conveyance to D impair, or in any way affect C‘s mortgage debt, or mortgage security? Or is there, оr can there be, independent of the recording act, as between C and D, any material question of good faith, or of notice, or even as to the consideration of D‘s conveyance? Is it, or can it be at all material as between C and D, irrespective of the recording act, whether D did or did not pay a valuable consideration for his conveyance, or whether he had, or had not notice of C‘s mortgage? Of course not. It is almost absurd to state these questions; and certainly, their statement furnishes their answers.
Nay further, no ingenious use of words, or plausible suppositions, or imperfect and deceptive analogiеs, can show, with the recording act in full force, and in view, that A‘s conveyance to D, did, or could, in fact, of itself, or by itself, carry, or convey anything but the equity of redemption, for he in fact, had nothing else to convey; and it is even beyond legislative power, however omnipotent, to enable a person to actually convey that which he has not. And, of course, A‘s deed to D did not, and could not, of itself or by itself, as
Nay, still further, courts of law, as well as courts of equity, have for a long time viewed a mortgage, before foreclosure, as a mere security for the payment of the debt, and as only a chattel interest; the debt as the principal, and the mortgage and mortgage interest on the land as the mere incident or accessory. An assignment of the principal, the debt, carries with it the mortgage, the incident. The mortgage interest before foreclosure is assets in the hands of executors and administrators. The mortgage interest, before foreclosure, is not the subject of sale on execution at law. (Jackson v. Willard, 4 Johns., 41; Blanchard v. Colburn and Ux., 16 Mass., 345.)
In Jackson v. Bronson (19 Johns., 325) it was held, that the mortgagor in fee could maintain ejectment against the grantee by deed in fee-simple of the mortgagee.
In Wilson v. Troup (2 Cowen, 195) it was held, that the mortgagee, though he had conveyed the whole mortgaged premises with warranty in fee, could yet foreclose, for the reason that this conveyance of the land did not pass his interest in the mortgage; that a mortgage is the mere incident of the debt, and that an assignment of the mortgage interest in the land, without the debt, is a nullity. See also, Jackson v. Blodgett (5 Cowen, 202, 206, 207).
In Jackson v. Willard (4 Johns., before cited), Ch. J. KENT said, that “the mortgage interest, as distinct from the debt, is not a fit subject of assignment;” that “it would be absurd in principle and oppressive in practice for the debt and mortgage to be separated and placed in different hands.” In his commentaries (4 Com., 194, 5th ed.), he says: “The assignmеnt of the interest of the mortgagee in the land, without an assignment of the debt, is considered to be without meaning or use. This is the general language of courts of law, as well as courts of equity; and the common sense of parties, the spirit of the mortgage contract, and the reason and policy of the thing, would seem to be with the doctrine.”
The whole drift of the argument of Mr. Justice DANIELS in his opinion, and of the argument of the counsel for the respondent is, to show, that with the aid of the recording act, Minott Mitchell‘s deed to the respondent made him an assignee of Purdy‘s mortgage interest in the land, as distinct from Purdy‘s mortgage debt. It is not claimed or pretended, nor could it be, even with the aid of the recording act, that Purdy lost his mortgage debt by neglecting to have his assignment recorded; that it was either extinguished by the act, or otherwise transferred to the respondent.
Now having shown at length, perhaps inexcusably so, that Minott Mitchell‘s deed to Huntington did not, and could not, as his act and deed merely, without the aid of the recording act, make the respondent an assignee of Purdy‘s mortgage interest in the land for two reasons: 1st. Because he could not convey that which he had not; and 2d. Because the law would not have permitted him, if he had had Purdy‘s mortgage interest in the land, effectually to assign it as distinct and separate from the mortgаge debt—Let us now turn to the recording act.
How does it operate as a protection or in aid of the subsequent purchaser, grantee, mortgagee or assignee, in good faith, for a valuable consideration, whose deed, mortgage or assignment is first recorded? By avoiding the prior deed, mortgage or assignment, the recording of which has been neg
If the act requires an assignment of a recorded mortgage to be recorded, as against a subsequent grantee in good faith and for a valuable consideration of the equity of redemption, whose conveyance shall first be recorded, then there is an end of this case in favor of the respondent. If it does not, but only requires such assignment to be recorded as against a subsequent assignee in good faith and for a valuable consideration of the mortgage, whose assignment shall first be recorded, then there is an end of this case in favor of the appellant.
I do not question the power of the legislature by the recording act to separate the mortgage interest in the land and transfer it to the subsequent assignee as a distinct thing from the mortgage debt, leaving the debt, as evidenced by the bond or other instrument, in the hands of the first assignee, to be enforced as he may be able to enforce it without the mortgage security.
Now, I think I have shown, but perhaps with inexcusable elaborateness, that the question whether Benjamin H. Purdy lost his mortgage, lien and security by neglecting to have his assignment recorded, is and must be entirely a question under the recording act, and that its decision wholly depends upon the decision of the question of construction, whether the act required him to record his assignment of the recorded mortgage as against Huntington, the subsequent grantee, of Purdy‘s assignor, who had in faсt, and could convey nothing more than the equity of redemption.
This question of construction was decided by this court in Campbell v. Vedder (3 Keyes, 174), and I think rightly decided, in favor of the prior assignee of the recorded mortgage. I do not think, that the report of this case justifies Justice
It does not follow, because a court might have decided a case upon either of two or more grounds, that its decisiоn is not authoritative, on the ground it was decided.
This question of construction was not in Kellogg v. Smith (26 N. Y., 18), because there, the question was between two assignees of the bond and mortgage. That case was decided on the ground that the second assignee was not an assignee in good faith; that the non-production of the bond and mortgage by his assignor, charged him with notice of the first and prior assignment, and of the delivery of the bond and mortgage to the first assignee.
This decision assumed, that the assignee of a mortgage, whether recorded or not, is required by the act to have his assignment recorded, as against a subsequent assignee in good faith and for a valuable consideration of the samе mortgage, whose assignment was first recorded; otherwise the question of good faith would not have been a material question in the case.
This was expressly decided in Vanderkemp v. Shelton (11 Paige, 28). It was also assumed by Justice ALLEN in his dissenting opinion in Kellogg v. Smith, and by Justice PECKHAM in his opinion in Campbell v. Vedder; and I think it plainly follows from sections 1, 37 and 38 of the recording act.
The ingenuity and unsoundness of the argument of the counsel for the respondent in this case, consists mainly in this; that he starts by supposing that the respondent looked at the records, and saw the deeds and mortgages that were recorded, and then he tries, with the aid of the recording act, to make the respondent a subsequent assignee of the mortgage interest in the land distinct from the mortgage debt, and thus put him in a position in which he can claim the protection of the
It is absurd to say, or to think, if the respondent had searched the records and found the deeds and mortgage that were recorded, and had supposed from them, that the mortgage, or mortgage interest in the lands, had been merged, that such inspection of the records and knowledge of the recorded deeds and mortgage, and erroneous supposition, could or would at all have affected the operation of Minott Mitchell‘s deed to him, or tended to show, that by that deed, he became the assignee of Benjamin H. Purdy‘s mortgage, or mortgage interest in the land.
I think the judgment of the Special Term was clearly right, and that the order of the General Term reversing it should be reversed.
All concur, except GROVER, J., who was for affirmance, and SMITH, J., who did not sit.
Order of the General Term reversed; judgment of foreclosure absolute for the plaintiff.