| NY | Jan 5, 1874
Lead Opinion
The plaintiff claims that the mortgage to the loan commissioners has no validity as against him, and that his deed has priority over it under the laws in reference to the registry of deeds and mortgages. It is a principle of law, not now open to doubt, that, ordinarily, if one who has no title to lands, nevertheless makes a deed of conveyance, with warranty, and afterward himself purchases and receives the title, the same will vest immediately in his grantee who holds his deed with warranty as against such grantor by estoppel. In such case the estoppel is held to bind the land, and to create an estate and interest in it. The grantor in such case, being at the same time the warrantor of the title which he has assumed the right to convey, will not, in a court of justice, be heard to set up a title in himself against his own prior grant; he will not be heard to say that he had not the title at the date of the conveyance, or that it did not pass to his grantee in virtue of his deed. (Work v.Welland,
I, therefore, can see no difficulty in this case, growing out of the law as to the registry of conveyances. Martin B. Perkins, having title, made the mortgage which was duly recorded. He then conveyed to his father and the deed was recorded. His father then conveyed to him and the deed was recorded. He then conveyed to the plaintiff and his deed was recorded. Thus the title and record of the mortgage were prior to the title and record of the deed to plaintiff, and the priority claimed by plaintiff cannot be allowed, Assuming it to be the rule that the record of a conveyance made by one having no title, is, ordinarily, a nullity, and constructive notice to no one; the plaintiff cannot avail himself of this rule, as he is estopped from denying that the mortgagor had the title at the date of the mortgage. The case of White v. Patten (supra), is entirely analogous to this. In that case, the plaintiff derived his title from a mortgage, made to him by one Thayer, containing covenants of seizin, warranty, etc., and recorded February 19, 1834. At the time of the execution of this mortgage the title was not in Thayer, but in one Perry, his father in law. Perry afterward, by deed, recorded. August 2, 1834, conveyed the land in fee simple to Thayer, who conveyed the land by mortgage to the defendant, recorded the same day. The counsel for the defendant used the same arguments in a great measure, which have been urged upon our attention by the counsel for the plaintiff in this case, both as to the title and the registry of the mortgages; and, yet the *101 court held in a very able opinion, that the plaintiff had the prior and better title.
I am, therefore, of opinion that the judgment should be affirmed, with costs.
Dissenting Opinion
When Martin B. Perkins gave the mortgage to the loan commissioners he had possession, but no title to the mortgaged property. He had forged a deed of the premises from Gamaliel Perkins to himself, and caused it to be put on record in the clerk's office of the county of Washington; and by this device, imposed upon the loan commissioners. The forged deed, was, of course, a nullity, and could not in the eye of the law, have any effect by way of constructive notice or otherwise. It conveyed nothing, and was not a "conveyance" within the meaning of the recording acts, and did not affect the title to the land "in law or equity." It may be assumed, therefore, that the loan commissioners took the mortgage, knowing that Martin B. Perkins had no title, it being very clear that they acquired no legal rights by being imposed upon, against any one, save Martin B. Perkins. They got no interest in the land, either in law or equity. It is not in principle, unlike the case of a forged negotiable promissory note, where a bona fide holder for value can have no protection. It follows, therefore, that the entry of the mortgage in the books of the loan office at the time it was made, was of no legal consequence whatever, except as against the mortgagor. It was no notice under the recording acts, for it did not in the remotest degree affect the title to the land described in it. The mortgage contained a covenant of title, and it seems to be clear, that a title subsequently acquired by Martin B. Perkins, would, ordinarily, inure by estoppel, or otherwise, to the benefit of the mortgagees if other rights have not intervened. The title to the mortgaged premises was in Gamaliel Perkins, from the 18th of January, 1848, to the 16th of December, 1859, when he conveyed it to Martin B. Perkins. By this conveyance, the mortgage given by Martin B. Perkins to the *102 loan commissioners in October, 1850, acquired legal vitality by way of estoppel, or in some other form, and if it had then been in any proper form recorded, constructive notice of its existence, as a valid lien upon the property, would have been given to all the world. It is urged, that there was no necessity of making any further record of the mortgage, because the title in the mortgagees comes under the warranty by way of rebutter or estoppel. This will not do. It is sufficient, to say, that by virtue of the transactions under which the defendants look to enforce the lien of the mortgage, the title to the land is affected, and such a paper must be properly put on record to bind subsequent purchasers in good faith.
If this be not so, it is impossible to see how a subsequentbona fide purchaser can have any protection, and when it is said to be impossible to record the estoppel which gave the mortgage vitality, it may be answered: that, until the estoppel became operative, the mortgage was a nullity and the record of it no notice whatever. When, however, Martin B. Perkins obtained the title to the premises, it became by some operation of law valid against him; but it was of no greater force or effect, than if he had on that day given it to the loan commissioners. It then, for the first time, affected the title to the land, and in order to bind subsequent purchasers, in good faith, must be duly recorded, and this was not done in any such way as to operate as constructive notice under the recording acts.
It is not questioned, but that the plaintiff is to be protected as a bona fide purchaser, for value, unless the mortgage given in 1850, and then entered in proper order in the books of the loan office, which, at the time, did not affect the title to the land in any way, was constructive notice of the lien. It is well settled, that a conveyance that is not duly recorded according to law, even when the actual title has passed, is not effectual as constructive notice. (Frost v. Beekman, 1 John. Ch. R., 288;Lessee of Heister v. Futner, 2 Binney 40.) Much less can it be, that a conveyance which does not affect *103
the title, can give any legal notice whatever. In the very best aspect of the defendant's case, the record of the mortgage was made out of the order required by law, and failed to give notice to anybody dealing with the title to the land. (The N.Y. LifeIns. Co. v. White,
The judgment should be reversed, with costs, the mortgage declared no lien upon the land of the plaintiff, and the loan commissioners perpetually enjoined from attempting to enforce it.
For affirmance, EARL, GRAY and JOHNSON, CC.
For reversal, LOTT, Ch. C., and REYNOLDS, C.
Judgment affirmed.