Frazee v. Inslee , 2 N.J. Eq. 239 ( 1839 )

The Chancellor.

The complainant’s mortgage bears the earliest date of any of the present incumbrances oil the property which it covers. It is said to be antedated, but it is not so proved, and if it might be surmised from the attendant circumstances that it does not carry its true date, yet it does not appear when it was in fact executed. The money for which this mortgage was given was applied to pay off a previous mortgage held by Samuel Oliver on the property, and the complainant might by assignment of such mortgage have been placed as the first incumbrancer. I suppose the complainant’s was in fact, therefore, the first lien, and was so intended to be. By the neglect of Mr. Sfansbury, the complainant’s agent, as he swears, the mortgage was not placed on record until after Samuel Campbell’s mortgage for seven hundred dollars, which bears a later date. After the complainant placed his mortgage on record, Samuel Campbell can-celled his mortgage of record, and took a deed from Inslee and wife for the property. This places the parties again as they originally stood; the complainant’s mortgage first, and Mr. Campbell’s second. It seems that the complainant’s mortgage was received in the office to be registered on the 21st of April, 1837, at half-past ten in the morning, and the mortgage of Campbell was cancelled and his deed recorded on the next day.

The defendant alleges, that his mortgage was cancelled and his deed taken by the fraudulent management and misrepresentation of Elias Stansbury, the complainant’s agent. Had this been made out in the pioof, I should readily have protected the defendant ; but there is, in my opinion, a failure to sustain by evidence this part of the case. There is, it is true, an appearance ©f a studied silence on the part of Stansbury respecting the complainant’s mortgage, and a promptness in putting it on record at the time when he knew the parties were negociating to sell the land to Campbell-,' and I have no doubt he intended, if they did sell, that the complainant’s mortgage should stand as a lien on the property. But was all this in any way fraudulent ? He was not bound to give information, unless he pleased, that he held in his hands a mortgage; but he takes it to the public office, and there places it on record, to be seen by every body. The only act that I perceive Stansbury charged with by the evidence is, that he recommended to Campbell to take a deed;. There is no doubt that the- mortgage of complainant was at the clerk’s office the day before the defendant cancelled his mortgage or took his deed. He-examined the records, and it seems the clerk gave him- wrong information. He did not,-when inquired of, inform him that this mortgage- of complainant was left there for record. That it was there, however, at the time, I see nothing from the evidence to make me doubt. The clerk’s certificate on- the back of it says it was recorded on the 2Lst of April. In the absence of any proof of fraud by the complainant, or his agent, when the mortgage was cancelled intentionally and understandingly by the defendant, and a deed taken for the same property, I cannot upon any safe principle revive the mortgage, or prevent the complainant from reaping the benefit of his rights as a first mortgagee. This would be giving encouragement to negligence, and destroy the value of a public record. It is to be observed, that . the defendant has no certificate from the clerk of any search,- but the evidence is,, that the clerk’s deputy told him, upon enquiry,that there were only certain incumbrances on the property, omitting that of the complainant. It further appears, from the testimony of Jeremiah Crocheron, that before taking the deed he-mentioned to the defendant, Campbell, the existence of this mortgage — that he got his information from Inslee; to which Campbell said, he would run the risk of that, for he had searched. This information, coming directly from Inslee, should, at any rate, have put him on enquiry and more diligent investigation. This enquiry of the clerk was made the day before the mortgage was cancelled, and the mortgage and deed were brought to the office by Campbell himself. He then had a further opportunity to examine the records, had ho been disposed so to do. The whole evidence is obscure and uncertain. It is not quite clear from Bigbie’s evidence, what part of the day it was on the 21st— whether before or after dinner- — that he saw1 Mr. Campbell. It might have been before the complainant’s mortgage was brought to the office on that day, though I should infer the contrary.

As the defendant has failed to sustain his case by sufficient evidence, the complainant is entitled to the ordinary decree on his mortgage.

Decree accordingly.