Larned v. Donavan , 91 N.Y. Sup. Ct. 533 ( 1895 )

FOLLETT, J.

The mortgage which the plaintiffs seek to set aside was executed January 11, 1886, was recorded February 10, 1886, at which dates Algie, the mortgagor, owned the fee of the mortgaged premises. May 4,1886, Golding, the mortgagee, assigned the mortgage to Donavan in part payment of a debt due from Golding to Donavan, and the assignment was recorded May 7, 1886. When the assignment was executed and recorded, Algie was still the owner of the fee, and Golding was the owner of the mortgage, and had the right to assign it. The court found, as a fact, that Donavan took the assignment in part payment of a debt, and without notice of the transactions between Algie, his creditors, and the plaintiffs, and that Golding subsequently executed a satisfaction without the knowledge or authority of Donavan. Subsequent to Donavan’s acquiring title to the mortgage, and on the 15th of June, 1886, the plaintiffs received a conveyance of the mortgaged premises. They had actual notice of the existence of the mortgage, and the assignment of it is a conveyance within the recording act, and the record was notice to the plaintiffs, who were subsequent purchasers of the mortgaged premises, that Donavan was the owner of the mortgage. A mortgagee is a “purchaser,” within the recording act, and so is an assignee of a mortgage (1 Rev. St. p. 762, § 37); and a mortgage is a “conveyance,” within the act, and so is an assignment of a mortgage (1 Rev. St. p. 762, § 38). The recording act is for the protection of “purchasers” by deed, mortgage, or by assignment of a mortgage, in good faith and for value, from unknown conveyances, rights, and equities arising under them, and connected with the title, but not for the protection of rights arising out of the consideration of the conveyances. The evidence given in behalf of the plaintiffs shows that at the time Golding assigned this mortgage it was a lien on the premises for $574.41, with interest from March 10, 1886, and his assignee, Donavan, acquired all the rights of the mortgagee. The plaintiffs, being subsequent purchasers of the premises from Algie, took them subject to the rights of Donavan, the assignee of the mortgage, who acquired a perfect title to it, and the plaintiffs failed to establish a right to have it canceled of record as a cloud on their title. If Algie had paid the mortgage, May 14,1886, in good faith and without notice of its assignment to Donavan, and had taken a satisfaction, the case would have been within section 41, 1 Rev. St. p. 763, which provides:

“The recording of an assignment of a mortgage shall not be deemed in itself notice of such assignment to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee.”

• The plaintiffs did not prove that they had paid Golding or any one any part of the $574.41, either before or subsequent to the satisfaction; but, had they proved payments made to the mortgagee subsequent to the assignment and the date when the plaintiffs acquired the fee, such payments would not have been good as against Donavan. Brewster v. Carnes, 103 N. Y. 556, 9 N. E. 323. The judgment should be affirmed, with costs. All concur.