Stuyvesant v. Hone and others.

they should release to Thorne without inquiry. In answer to this, it may be said that they had no information of a change of the interests, and therefore were not put upon inquiry. As they had a right to suppose the interests were, Bruen would represent either the whole title as executor of Smith, or the revisionary interest in the whole, in case the trust in Mr. Anthon were outstanding. A request from Bruen to release to Thorne, was not therefore a strange circumstance, or one requiring them to look into Thorne's title.

Before Mr. Hone's executors complain of the release, they ought to show that they have not been remiss on their part. They knew perfectly well that Mr. Stuyvesant understood their rights as they were in 1829. They appear to have had no reason to suppose that he or his representatives were apprised of any alteration in those rights. If they effected a change in their interests, which essentially altered their relative position towards the mortgage held by Stuyvesant, it was their duty to have informed him of it. Having omitted to notify him of the change, it would be unreasonable for them to complain because he or his executors have acted as if no change had occurred.

The Chancellor says, in Guion v. Knapp, "If, therefore, the prior purchasers are so negligent as to leave the holder of the incumbrance to deal with the mortgagor, or with a subsequent grantee of a portion of the premises, under the erroneous supposition that the lands conveyed to the prior purchasers still belong to the mortgagor, the mortgagee will not lose his lien by executing a release to one who happens to be a subsequent grantee."

Third. It is said that the release was fraudulent, and that the complainant must amend her bill so as to bring in the owners of the premises released, and subject them to contribution.

There is no pretence for asserting that the mortgagees participated in the alleged fraud. And if the defendants supposed that Thorne or Bruen acted in fraud of their rights, and ought to contribute to the payment of the mortgage, their remedy was against those parties, and not against the complainant.

Stuyvesant v. Hone and others.

Fourth. It is further contended, that if the release is valid, then a proportion of the mortgage in the ratio of the value of ,the released part is paid, and the remaining lots are only chargeable with the balance.

This argument is advanced upon the authority of Stevens v. Cooper, (1 J. C. R. 425.) The case is not very clearly stated, but it is apparent that Cooper, the mortgagee, had notice of Stevens having purchased the Camillus lot, before he released the four lots subsequently sold by the mortgagor. This fact, of itself, would exonerate the Camillus lot at least to the full extent which was accomplished by the decree in that case, on the well settled principles of equity which were applied in Guion v. Knapp, and the decision proceeds upon the ground that the several lots were owned by different persons subject to pay the mortgage rateably, whose rights were known to the mortgagee. The absence of notice to Stuyvesant's executors renders this case wholly unlike Stevens v. Cooper, in its controlling and decisive feature.

In the case of Parkman v. Welch, (19 Pick. 231,) also cited by the defendants, the holder of the mortgage knew of the rights of the parties when he released. That suffices to distinguish it from this case, although it might be observed that in this state, under like circumstances, equity would apply the principle of subjecting the premises in the inverse order of alienation, rather than that of contribution.

The complainant is entitled to the usual decree.

Warner v. Winslow.

WARNER v. WINSLOW and others.

S. conveyed land to R. H. W. by an absolute deed, as security for a loan, subject to a mortgage to D. The conveyance was recorded as a deed. A few days thereafter, and after the loan was paid up, R. H. W. purchased the land from S., and on S. procuring a satisfaction piece from D. duly recorded, W. paid to S. the entire price of the land. D. had long before assigned the mortgage to J. R. W., but the latter had neglected to record the assignment. D. received no payment or consideration for the discharge. R. H. W. had no notice of this fact, or of the assignment to J. R. W.

Held, that the land in the hands of R. H. W. and of purchasers from him, was discharged from the mortgage.

The recording of the deed to R. H. W. was, in the first instance, a nullity. But after he purchased and paid for S.'s equity in the land, the record of the deed became fully operative. The transaction was equivalent to the delivery of a deed, which had been recorded in anticipation of the completion of a sale.

If the assignment had been recorded while the deed stood as security for S.'s loan, the land in R. H. W.'s hands would have been liable to the mortgage.

The record of a deed, recorded before delivery, or which is recorded as a deed when it is intended as a security, becomes valid upon a complete delivery, or a purchase of the equity of redemption; and is from thence operative against subsequent purchasers and incumbrancers.

To complete the character of a bona fide purchaser in equity without notice, it is not necessary that the whole or any part of the consideration be paid at the time of the delivery or recording of the conveyance, (as the case may be.) It suffices that it be paid before the purchaser has notice of the prior right.

It is the policy of our laws, to facilitate alienations of land. The recording acts pursue this policy, regulating alienations only so far as to afford security to purchasers and incumbrancers. Those acts should not be so construed and refined upon as to thwart or impede the great design of their enactment.

Semb. That if R. H. W.'s deed were inoperative, he has the superior equity, by his purchase and payment for the land, and entering into its possession, before the assignment was recorded, and without notice of its existence.

Also, that a re-delivery of the deed would be inferred on such purchase and payment, if it were necessary to support the vendee's title.

March 6; July 3, 1844.

THIS was a suit to foreclose a mortgage. The bill was filed on the 26th of January, 1841. It stated that W. W. Backus, on the 1st day of May, 1836, executed to John Darley his bond and mortgage for $500, payable in four years with semi-annual

Warner v. Winslow.

interest at six per cent. The property mortgaged was on Hudson street in this city. The bond is lost. The mortgage was recorded, May 26, 1836. That on the 8th of June, 1837, Darley, in consideration of $500, assigned the bond and mortgage to the complainant. The assignment was recorded, March 25, 1840.

The bill then stated that Backus conveyed the premises to G. Morris; Morris to Henry Schenck; and Schenck and wife to the defendant, Richard H. Winslow; each conveyance being made expressly subject to the mortgage. That after the latter conveyance, the defendant, Schenck, in fraud of the complainant, and knowing that he was assignee of the mortgage, obtained from Darley, without any consideration or payment, a satisfaction of the mortgage, and caused it to be recorded. That the mortgage has never been paid, that Winslow had notice of the assignment when the lands were conveyed to him, and that after the assignment was recorded, he conveyed to the defendant, Manning. The bill charged that the interests of Winslow and Manning, were subject to the complainant's rights as assignee of the mortgage.

'The answer of Winslow, set forth that the premises were conveyed to him by Schenck and wife, by a deed dated January 6th, which was delivered about the 18th of January, 1840, and recorded on that day. The deed was expressed to be subject to a mortgage for $500, executed by Backus to Darley, which Winslow was to pay. That the conveyance to him was made in good faith, for a good and valid consideration, and without notice of any assignment of the mortgage to any person. That before Schenck's deed was delivered, Darley acknowledged satisfaction of the mortgage, and the discharge was delivered to him, and he paid a larger consideration in consequence thereof. He believed and had no reason to doubt, but that the mortgage had been satisfied, when he parted with the purchase money. That he is ignorant of any fraud in Schenck, and as to the mode in which the discharge was obtained; or whether the mortgage had been actually paid. That he had no notice of the assignment of the mortgage, until after the conveyance was delivered to him and the price paid.

Warner v. Winslow.

The answer of Manning set forth the same facts in substance. That the discharge was delivered to Winslow before he accepted the deed or paid the price; and that he, Manning, as well as Winslow, is a bona fide purchaser in good faith, for a valuable consideration, without notice of the assignment to the complainant, or of any fraud in procuring the discharge.

Proofs were taken on both sides.

The satisfaction executed by Darley, was dated January 30th, acknowledged the next day, and recorded February 1st, 1840.

Darley was examined as a witness for the complainant, and testified that no consideration was paid to him on his executing the discharge.

On the part of the defendants, it was proved that the deed from Schenck to Winslow, was in the first instance a security for a loan of money. The deed was not delivered till several days after it was executed, and it was recorded subsequent to its delivery. The loan for which it stood as security was fully paid. Soon after this payment, and on the 30th of January, 1840, Winslow, still holding the deed, purchased the premises absolutely from Schenck, and the whole consideration was paid on Darley's discharge being produced. That the purchase was intended to be made free from the Darley mortgage. And that Darley, when called on for a discharge of another mortgage given by Backus on lands included in Winslow's purchase, informed Schenck's agent that this mortgage of $500 was paid; and thereupon the agent, who was ignorant of the facts in regard to it, brought a discharge of the latter to Darley, who executed it. The consideration of Manning's purchase was a precedent debt due to him from Winslow.

A. S. Johnson, for the complainant.

A. L. Robertson, for the defendants, Winslow and Manning.

THE ASSISTANT VICE-CHANCELLOR.-The deed from Henry Schenck to Winslow was delivered before it was recorded, as collateral security for a loan made by Winslow to R. B.