Viele v. Judson , 22 N.Y. Sup. Ct. 328 ( 1878 )

Hardin, J.:

The record of the plaintiff’s mortgage was marked discharged March 29th, 1873, by the clerk, when he recorded the discharge executed by Vaughn bearing date March, 1873, acknowledged the 28th of March, 1873. When the clerk noticed the entry of the discharge, he found no entry of any assignment of the plaintiff's mortgage. Therefore the discharge executed by the mortgagee Vaughn was properly entered of record by the clerk. Had the paper called the assignment of the mortgage, executed by Vaughn to plaintiff, been noted at the foot of the record of the plaintiff’s mortgage, it would have been irregular for the clerk to enter the discharge. The trial judge has found that the paper called an assignment, “ does not contain sufficient description of, or enough statements of facts concerning the mortgage to designate or describe the same.” Whether that finding is correct, is not important to be determined here. For it appears the plaintiff more than two years prior to the purchase by Judson of the mortgage held by him, knew of the discharge of his mortgage. The trial judge has found, viz : “ That the plaintiff Platt C. Viele, had, during the summer of 1873, and at all times subsequent thereto, full knowledge of the said discharge of the mortgage set forth in the complaint, and of the record of the same, and tooh no steps to reinstate the said record.” The evidence supports this finding. If the plaintiff as soon as he learned in the summer of 1873, that the mortgage had been discharged of record, had been active and vigilant, the discharge could have been vacated and innocent purchasers in good faith would not have parted with their money upon the faith of the record freed of the mortgage. Instead of being vigilant, as soon as he learned of the discharge, the plaintiff slept two years, and was culpably negligent, allowing the record to appear to be clear of his mortgage.

When Judson took an assignment of the $5,500 mortgage, a clerk’s search showing the record free of any mortgage to the plaintiff, was produced and acted upon, and in good faith without notice, Judson parted with his money and became the assignee of the mortgage made by Ludlam to Hubbard. The laches of the plaintiff, his negligence and the good faith of Judson parting with his money without notice of the plaintiff’s mortgage, work an estoppel upon the plaintiff in favor of Judson. Prompt and decisive action upon the part of the plaintiff, by suit to foreclose . his mortgage, if over duo with Us pendens filed, or if not over due, a suit to cancel the discharge, and to reinstate the record, would have saved the plaintiff’s mortgage, as well as prevented Judson or any one else from being deceived by the record. The observation of Van Vorst, J., in Costello v. Meade (55 How. 358), is applicable, to wit: “ For if a man so conducts himself, whether intentionally or not, that a reasonable person would infer that a certain state of things exists,and acts on that inference, he shall be afterwards estopped from denying it.” (Cornish v. Abington, 4 Hurl. & Norman, 556; Schafer v. Reilly, 50 N. Y., 67 and 68, and cases there cited of Jackson v. Van Valkenburgh, 8 Cowen, 260; Jackson v. Henry, 10 John, 185; Varick v. Briggs, 6 Paige, 323; Fort v. Burch, 5 Denio, 187.)

By failing to act the plaintiff identified himself with Vaughn, and must abide by his act so far as the subsequent purchaser is affected. (Bank v. Anderson, 14 Iowa, 544; and also close of opinion of Dwight Com. in Trustees of Union College v. Wheeler, 61 N. Y., 112.) Judson was, therefore, a subsequent purchaser,” in .good faith, without notice, parting with fresh consideration, and must be permitted to hold his mortgage as a prior and superior lien in equity to the mortgage of the plaintiff. ( Van Keuren v. Corkins, 66 N. Y., 77; DeLancey v. Stearns, 66 N. Y., 157; Trustees of Union College v. Wheeler, 61, N. Y., 89.) It follows from, these views, that the result reached at the trial was correct, and the judgment should be affirmed, with costs.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed with costs.