Simonson v. Falihee , 32 N.Y. Sup. Ct. 570 ( 1881 )

Barnard, P. J.:

In December, 1873, Benjamin A. Simonson was the owner of a bond and mortgage upon premises in Westchester county. The mortgage originally had been given by one Hannah Sparks and husband to Wheaton for the purchase of the land. On the 23d of December, 1873, Simonson released a portion of the mortgaged premises to Mrs. Sparks. The release was so worded that the whole ínort^aged premises were released, except a certain particularly described portion therein. The release was recorded by mistake, omitting the word “ except,” whereby the premises designed to be released were not so released by the record, and that portion designed to be retained was released. Michael Falihee took a mortgage on the piece intended to be in fact not released. He had notice of the prior mortgage. Sparks offered him his election to take a first mortgage upon the part really released, or a second on the part really retained subject to the mortgage. As to Falihee he took with notice, and his assignees took no more rights than he had unless they are aided by the recording acts. Falihee assigned his mortgage to one Dowdny. Dowdny foreclosed it and Michael A. Falihee bought the premises in at the sale by Michael Falihee, as Ms attorney. When Dowdny bought Falihee’s mortgage the release was erroneously recorded. The mistake was discovered before the foreclosure sale. The case, therefore, presents the sole question: Did the sale of the mortgage by Falihee, who had notice of the priority of the Simonson mortgage to Dowdny, who had no notice, transfer the right to Dowdny to hold his mortgage superior to the Simonson mortgage % I think it did not. In the first place there is-no proof that either Falihee or Dowdny were deceived by the record, or that they either examined it before they took the mortgage. In the next place it has been repeatedly held by the Court of Appeals that an assignee of a mortgage takes the mortgage subject to all latent equities which existed against the assignor at the time of the transfer. This rule is not relaxed by the fact that the assignee took without notice of the defense to the mortgage and paid full value for the security. (Trustee, etc., v. Wheeler, 61 N. Y., 98; Viele v. Judson, 82 id., 38; Westbrook v. Gleason, 7 id., 30.) The record did not bind Simonson. He did not have it recorded. He is not to be deprived of his property by a failure of the clerk to record the release properly. Falihee is the subsequent purchaser or incumbrancer, and it was his duty to see to it that his title or conveyance was first “ duly recorded.” If Sparks was the purchaser he was to record it properly. The record of the release was complete when it was left with the clerk for record. (1 R. S., 760.) There are several decisions under a statute substantially similar to ours that in the absence of fraud or collusion the party is not responsible for the error of the clerk.

In the present case Simonson gave a good release, and his connection with it terminated there. Somebody made a mistake in the record to his injury. The record in such a case is not conclusive against him. He may show the mistake. (1 R. S., 759 ; Wilsey v. Dennis, 44 Barb., 359.)

The judgment should be affirmed, with costs.

Gilbert, J., concurred. Present — Barnard, P. J.; Gilbert and Pratt, JJ.

Judgment affirmed, with costs.