Majority
p. 509Isaac Johnson, and Elizabeth, his wife, appellants, against Thomas Stagg, respondent.
Headnote
The statute requiring the registry of leases assign-mortgaged °f A lease ,for 9 months, ex-1795, pursu-ment for a 3@asG 3op 20 .years, was to the istMay maké'valiVa demise by Way of mortgage made by the lessee, on the 6th May, 1795. Where a demise is made by way of mortgage of leasehold property, it is not necessary to deliver the lease itself to the mortgagee ; and leaving it in the hands of the mortgagor, is no evidence of fraud : because the statute requiring the registry of the mortgage, effectually secures subsequent mortgagees or purchasers against fraud or imposition. Such registry is equivalent to a notice ; and subsequent mortgagees and purchasers must look to the registry at their peril. Nothing but actual fraud can devest the prior mortgagee, whose mortgage is recorded, of his property. Subsequent mortgagees or purchasers are so far affected by the constructive notice arising from the registry of a prior mortgage that they are subject to all the equity existing between the prior mortgagee and mortgagor.The respondent, on the 17th June, 1803, filed his bill - ,, „ , . in the court or chancery, against the appellants, and one George Shelden, for the sale of certain mortgaged premises, and to foreclose the equity of redemption of the defendants, in the court below. The respondent’s bill stated, that Shelden, beingindebted to him in the sum of 200 pounds, on the 6th May, 1795, executed to him a bond, in the penal sum of 400 pounds, conditioned to pay the sum of 200 pounds, with interest, on or before the first of May then next; to secure the payment of which bond, Shelden, at the same time, executed to him a mortgage of a certain lot of ground in the city of New-York, (being leasehold property,) and the house thereon, in which he then lived; that the mortgage was duly proved or acknowledged, and registered according to law, and
p. 510
that afterwards Shelden, on or about the 16th September, 1795, sold and conveyed all his right and interest in the said lot of ground and house, to Elizabeth, {Johnson), one of the appellants, who afterwards married with Isaac Johnson, the other appellant; and that the 200 pounds were still due, with a part of the interest. &c. The bill was taken pro confesso, against Shelden, who did not appear. On the 10th November, 1803, the appellants filed their answer, in which they admit, that Shelden was in the possession of the mortgaged premises when the mortgage was executedbut they deny that he was, at the time, possessed of a good and sufficient estate in the law in the same. They also admit, that the mortgage was registered in the clerk’s office, on the 14th September, 1795, but the other facts mentioned in the respondents’ bill. they say, they neither know nor admit. The appellants, in their answer, alleged, that Shelden, being in possession of the mortgaged premises, offered them for sale to Elizabeth, one of the appellants, and declared that they were unencumbered ; that she, by the advice of counsel and her friends, examined the records in the office of the clerk of the city and county of New-Yorlc, in the afternoon of the 14th September, 1795, and that the-mortgage to the respondent w7as not then registered; that finding no encumbrance on the property, the purchase was completed on the 15th September, 1795, and a conveyance executed to her by Shelden, to whom she paid 1,000 dollars, and gave him a bond for the further sum of 1,000 dollars, payable on the 15th March, 1797, which has since been paid, The answer of the appellants also charged the respondent with a knowledge of the fact, and that he delayed registering his mortgage until after the search was made in the clerk’s office, on the 14th September, 1795, for the purpose of enabling Shelden, who was his son-in-law, to imposeonthe appellants, and bona fide purchasers. The answer further alleged, that im
p. 511
mediately after the sale to Elizabeth Johnson, she took possession of the mortgaged premises, and has received the rents and profits thereof, and that neither of the appellants heard of the mortgage to the respondent until June, 1803; the appellants further stated, that Shelden had taken the benefit of the insolvent act, and had left the state, and that they had no notice of the mortgage to the respondent until after he was gone ; and they insisted, that they were purchasers for a valuable consideration, and without notice of the mortgage to the respondent.
One of the subscribing witnesses to the bond from Shelden to the respondent, deposed, that he paid Shelden J50 pounds in behalf of the respondent, and saw the respondent deliver to Shelden a note for fifty pounds, which he owed to the respondent. John Murray, another witness on the part of the respondent, deposed, that on the 1st day of August, 1795,[he executed a lease of the mortgaged premises to Shelden, for 19 years and 9 months from the first day of August; that Shelden was then in possession of the premises, and had been in possession some time before, as early, he presumed, as the first of May preceding, as he had received from Shelden the rent from the 1st May to the 1st August, 1795; that one Washburn, who was a prior lessee of the premises, had assigned his lease to Shelden ; and that the witness, some time previous to the execution of the lease to Shelden, made an agreement with him to give him a new lease of the premises in his own name, and that in pursuance of that agreement, he executed the lease on the 1st August, 1795.
No proofs were produced by the appellants, in the court below, in support of the allegations in the answer, as to the knowledge, or fraud of the respondent. After hearing the cause, his honour, the Chancellor, on the 12th August, 1806, made the following decretal order : “It is
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“ ordered, that it be referred to one of the masters of this “ court, to ascertain the amount of the principal and in- “ terest due on the bond and mortgage, in the complain- “ ants’ bill of complaint mentioned, and that he report “ thereon with all convenient speed.” On the 27th August, 1806, an appeal was entered from this order, to this court.
The reasons for the order was thus assigned by his honour,
The Chancellor.
Two questions were made on this subject. 1. Whether the mortgage was operative to vest the term ? 2. Whether the registering act applies to terms for years? It ought to be premised, that there was no proof of fraud on the part of the complaintans; the money which the mortgage purports to secure had been actually paid to the mortgagor, and there was no indication of collusion between them.
As to the first question. The lease, in this instance, appears from the testimony in the cause to have been the object of contract between John Murray, the lessor, and the lessee. It also appears, that a house had been built by the latter, on the premises, before the 1st day of August, and before the execution of the mortgage to the complainant; that his possession was in unison with that contract, and that in consequence of it, he paid the rent for the premises prior to the 1st day of August. But this, it was said, was a mere potential right; that position, however, I think, cannot be supported; for though it is a maxim of strict common law, that a freehold shall not commence in future, it does not apply to the subordinate interests in terms for years. Here was a parol contract, anterior to its being reduced to writing for a term of 20 years. Rent had been paid, and buildings erected, and thus the contract was partly executed. It was, of course, a valid contract, before the execution of the lease, notwithstanding the statute of frauds and perjuries;, for
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a part execution has repeatedly been held, in this court, to take contracts, which otherwise, by the provisions of that statute, must be in writing, out of it. Hence the lease subsequently executed only furnished more certain evidence of the contract. It confirmed the grant of an interest in the premises, for twenty years, but it purported to have a retrospective effect to the 1st day oí May, preceding; but it was insisted, that the person to whom the lessee transferred his interest for the remainder of the 20 years, before the formal execution of the lease, should lose the benefit of the whole. That is not consistent with equity; the charge of fraud is not supported. The want of notice is repelled by the registry, if it applies to this case; and in every point of light, if the position, that this is a case within the registry act, can be maintained, it concludes in favour of the respondent.
As to the second question. The authorities cited on the argument, as to the British registry statutes, do not apply to this case. In some, the word hereditaments is the only one used to describe the quantity of interest required, to be registered, and in others terms for years, are excluded by express proviso. The words of our statute are much more comprehensive. Mortgages of lands, tenements and hereditaments, are required to be registered, and the word tenement, in its technical signification, undoubtedly, includes estates for years. If so, the registry is notice to all the world.
I was, therefore, of opinion, on both the points for the respondent, that his mortgage was valid; that his right to its satisfaction out of the mortgaged premises, ought to be sustained, and that it ought to be referred to a master, to ascertain the sum due on the mortgage.
Riggs, for the appellants.
1. Had the respondent such an interest in the premises, at the time, that he could mortgage them ? On the 6th day ofMay, 1795, Sheldon demised the premises, by way of mortgage, to the re
p. 514
spondent; but, at that time, he had no interest whatever, which he could demise. On the 1st day of August, 1795, the lease was executed to him by Murray, to take effect-from that day. He had, then, no interest in the premises, prior to the 1st day of August, that he could convey. On the 18th day of September, 1795, Shelden, being in possession of the lease, sold and assigned it to one of the appellants, and took a reassignment, by way of mortgage, to secure a part of the purchase money. It would be very strange, if the interest of the appellants could be, in any way, affected by a mortgage executed by Shelden, prior to the existence of any legal estate in him. 2. "But admitting, for t.he sake of argument, that, the lease from Murray to Shelden existed on the 1st day of May, 1795, I contend, that the only evidence of the title or interest of Shelden being the lease, it ought to have been delivered to the respondent, and, that, suffering it to remain in the hands of Shelden after the sale was, prima facia, a fraud. Leaving the lease in the hands of the mortgagor renders the’mortgage void, against a, bona fide purchaser, without notice. Tt is true that it has been supposed, that since our act relative to the registry of mortgages,[4] the registry of a mortgage is equivalent to a notice. But the act speaks only of mortgages of lands, tenements, and hereditaments. It does not extend to leases, which are mere chattel interests, any more than it extends to the mortgage of a ship.[5] The only mode of ac- . . . . 8 , . , f . , , . * quiring a title in a lease-hold interest, is by taking an assignment of the interest, together with the lease itself, which is the evidence of that interest. Otherwise, if the lease might be retained by the assignor, he would have it in his power to impose on third persons. This is a universal rule, in regard to the transfer of all chattels. The possession of the thing to be transferred, or the possession of the muniments and evidences of property, or title, must be delivered to the purchaser. The case of leases,
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then, stands precisely on the same reasons as the rule in JEngland, relative to the deposite of title-deeds, in case of mortgages. No lawyer or conveyancer ever doubted, that where a leasehold interest- was to be sold or mortgaged, that the lease must be delivered to the purchaser or mortgagee. Though the cases on this question, in respect to leases, in the books, are not numerous, there is one precisely in point. In Stone v. Orubham,[3] Sir Edward Coke said, that if the lease had remained in the custody of him who made the gift it would have been clearly fraudulent.
Baldwin, for the respondent.
1. It is proved that Shelden was in possession of the premises some time before the execution of the lease, on the 1st day of August, 1795. He must have been in possession, under an assignment of the prior lease from Washburn, or in pursuance of the agreement, with Murray, the owner of the fee. If the former, then he had a sufficient interest. Though there is no positive proof how long the lease to Washburn was to run, it is fairly to be inferred from the evidence, that-it was for 21 years, from the 1st day of May, 1794 : The 1st day of May is the usual commencement of leases, and 21 years is an ordinary term. Sheldenhemg the assignee of Washburn, and Murray, the lessor, having agreed to give him a new lease in his own name, on the 1st day of August, 1795, a lease was executed to Shelden, for 19 years and 9 months, which must be presumed to be the unexpired term of Washburn's lease. If Shelden, then, did not take possession under the assignment from Wash-bin, he must have taken it under the agreement with Murray. If so, he had an interest which he might assign by way of mortgage. lie took possession, in conse.quence of a parol agreement, and wras thus in possession of an equitable interest, which a court of chancery would recognise and protect. A court of chancery would have compelled Murray to execute a lease, pursuant to
p. 516
the agreement; and the subsequent lease, in equity, would be considered as relating to the day on which it ought to have been given.[4] An equitable interest may be mortgaged.[5] Again; the appellants claim under Shcl- den, who would have been estopped from saying that he had no title when he gave the mortgage to the respondent ; the appellants, therefore, must be also estopped from alleging any want of title in Shelden. 2. The act relative to mortgages extends to leases, or. estates for a term of years. The words of the act are general; it is not said mortgages of estates of freehold, or in fee-simple; but all mortgages of lands, tenements, or hereditaments. It was formerly the practice to give long demises by way of mortgage. Suppose a lease for 900 years, by way of mortgage, would it be said, that sucha mortgage was not comprehended by the statute? Is it not an interest in land ? In this respect, there can be no difference between a lease for 10 years, and a lease for 1,000 years. In either case, it is a mortgage of lands or tenements. The ancient notion about the dignity of a freehold, and the little value of terms for years, deserves no consideration. Terms for years may be far more valuable than a freehold, and equally so with an estate in fee. The dignity of the estate is to be estimated by its value. Courts, in modern times, are rather disposed to facilitate than to embarrass the use of property. If the doctrine contended for on the other side be correct, a person, possessing a lease for a term of years, and of great value, and desirous of raising money, could not mortgage it more than once, or execute a second mortgage until the first was paid. Again ; the registering of the mortgage must be considered as a legal notice, and binding upon a subsequent purchaser, or mortgagee. If the registering of a mortgage be a legal notice, then, leaving the lease, or title-deed, in the hands of the mortgagor, cannot affect the validity of the mortgage, because the possession of the lease
p. 517
cannot possibly mislead or deceive a subsequent purchaser, who uses proper diligence to ascertain the fact of a prior encumbrance. In the present case, the appellants ought to have searched the records, on the 15th day of September, when the conveyance was made to them. In not doing so, they have been negligent, and must suffer the consequences of their own supineness. But, in England, it has never been decided, that leaving title-deeds in the possession of the mortgagor, was conclusive evidence of fra'ud. . It is, at most, prime* facia evidence ; and if a satisfactory reason can be shown, for leaying the title» deed with the mortgagor, it will repel the presumption of fraud. At the time the mortgage in question was executed to the respondent, Shelden ' had no written lease which he could deliver. The case from Bulstrode was of an absolute conveyance; and Lord Coke expressly says, that when the conveyance is conditional, a continuance in possession afterwards, shall not, in the judgment of the law, be fraudulent. Here was a conditional conveyance, and the retaining of the léase was perfectly consistent with the nature and course of the transaction. It was necessary to protect the mortgagor’s possession. But if the statute relative to mortgages extends to leasehold property, then all the doctrine about presumptive fraud, arising from the mortgagor’s retaining the lease, is inapplicable, where the mortgage has been registered. None of the allegations of fraud or misconduct in Shelden and the respondent have been proved. There are no circumstances disclosed which afford a presumption of fraud. The record of the mortgage, on the 14th day of September, Was notice to all the world. The appellants, in their answer say, they searched the records on the 14th day of September, but it is not said, nor is it proved, that they did search on the 15th day of September.
Riggs, in reply.
The not delivering the lease is a fraud at common law, though not under the statute. Though
p. 518
the non-delivery of title-deeds, in regard to a mortgage of freehold estates, is considered as fraudulent in England. I do not say that it would render a mortgage void here. £t may be just to say, that the registering of a deed is notice to all the world, though the rule has not yet been laid down to that extent. The subsequent .acquisition of a lease by Shelden cannot relate back so as to affect third persons, or intervening purchasers, though it may be good as between "he parties. But why isa lease to Washburn to be presumed? There is no evidence of a lease. Whether he was in possession for one, or for twenty years, whether by parol, or by writing, does not appear. There is no ground for the presumption. Suppose it was a parol demise for twenty years, it could last no longer than three years. A parol demise is good only for three years. If, then, Shelden had a mere parol demise from Murray for twenty-one years, he had not such an interest as would enable him to demise the property, by way of mortgage, for twenty years. All the interest of Shelden was derived from Murray. His agreement or contract to give a lease, was not a lease; and until a lease was actually executed, Shelden had no interest to mortgage. The respondent, then, relied on the mere possession of Shelden, and made no inquiry after a title. When Mrs. Johnson, one of the appellants, purchased the lease, it never could occur to her as necessary to inquire after a prior lease or mortgage; for why search for any encumbrance prior to the time the title of the mortgagor accrued ? Again ; it is said all persons claiming under Shelden, are estopped from saying he had no title. But this rule can never apply to third persons, who come in under proper evidence of title, and without notice of prior claims.
This is an appeal from a decretal order of the court of chancery, establishing the right of the respondent to have his debt satisfied out of the mortgaged premises, notwithstanding the sale to one of the appeliants.
p. 519
When Siagg took his mortgage from Shelden, on the 6th of May, 1795, the only interest (if any) which Shelden had in the premises, was as assignee of Wastiburn. What was the extent or duration of Washburn's lease does not' appear, and the respondent has not stated the evidence or representation of title which led him to accept of the mortgage. As we know nothing of the contents of Wash-hum's lease, nor whether it had or had not expired on the 6th of May, we cannot well take into consideration any supposed interest under that lease; for de non apparentihus et de non existentihus eadem est ratio. All that the parties have disclosed to us is, that Shelden had been in possession of the lot from March preceding; and that Washburn, as prior lessee of the lot, had assigned his lease to him, and that some time previous to the 1st of August, Murray had made an agreement with Shelden, to give him a new lease, in his own name, and that the same was executed on the 1st of August, for 19 years and 9 months, and that Shelden had paid the rent to Murray, from the 1st of May. If we were to draw any inference from these facts, relative to Washburn's lease, a probable one would be, that the lease expired on the 1st of May, 1795; that Shelden and Murray had made their agreement for the new lease, prior to the 6th of May, and that the mortgage to Siagg, which was by way of lease for 20 years, was made and accepted upon the strength of that new agreement.
If this was the real truth of the transaction, the mortgage would, undoubtedly, as against Shelden, include the interest conveyed by the lease of the 1st of August. A conveyance will, in many cases, be deemed to relate back to the time when the-agreement for it was concluded, and render valid any intermediate disposition of the land. (Jackson, ex dem. the loan officers of Rensselaer, v. Bull, April term, 1799.) If this was now a question at law between Siagg and Shelden, I believe it would not be
p. 520
doubted," that the lease of the 1st of August, 1795, related back to the time of the agreement made with Murray, and that the agreement would be carried back to the 1st of May, so as to protect and make valid the mortgage to Stagg. If, on the other hand, we were to admit that Washburn's lease was for an existing term of 20 years, and that the mortgage was founded upon that lease, and intended to have been co-extensive with it, and that the new lease was given for the same term, and was nothing more than the substitution of the name of Shelden for that of Washburn, yet this act would by no means affect the respondent. It would be deemed the same continued interest, as respects the rights of Stagg, for it was notin the power of Shelden, by the surrender of the old, and the acceptance of a new lease, to defeat the effect of the previous mortgage. So that, upon either supposition, quacunque via data, the claim under the mortgage would be conclusive, as against Shelden, the mortgagor.
But this is a contest between Stagg, and a subsequent bona,fide purchaser; and it is contended, that the appellants do not stand in the place of Shelden, but on higher and firmer ground, and are entitled to full protection against this antecedent encumbrance. The solidity of this pretension is the point which we have to discuss and decide.
In the first place, there was a suggestion of'fraud or collusion between Stagg and Shelden, to the injury of Mrs. Johnson,- but nothing of this kind was made out in proof, and the mortgage is shown to have been given bona-fide, and for a valuable consideration. Though it be admitted, that there are circumstances in the case which might lead us to favour, as much as possible, the title of Mrs. Johnson, as being an innocent purchaser, who had, the day before, searched the records, yet as no testimony warrants the charge of fraud, it is impossible for this court to make that conclusion, because it would be unjust to
p. 521
vary the rights of the parties on mere surmise and conjecture. The charge was only suggested, and not urged, by the appellants’ counsel, and it is our duty wholly to abandon it.
It is again said, that as Stagg, the mortgagee, left the new lease after the 1st of August, or left Washburn’s lease at the time, in possession of Shelden, the mortgage became void as against a subsequent purchaser, without notice, because, by leaving the lease in possession of Shelden, he left with him the means to impose upon strangers who might have, no knowledge of the encumbrance. But there is no evidence that Stagg knew of the actual execution of the new lease at the time it was made; and if he had known of it, he had no means to obtain the possession of it, as he had advanced this money, and taken his mortgage some time before. If, however, that lease had been in esse, when the mortgage was given, I am of opinion, it would not have been requisite for Stagg to have taken possession of it; and that the English law requiring the mortgagee to receive the title-deeds as a deposite, does not apply here. As this is an important question in itself, and the determination of it, perhaps, decisive in the present cause, I must beg the patience of the court, while I bestow on it a more particular attention.
The reason of the English rule is, to protect subsequent purchasers and mortgagees, because, by leaving the title-deeds with the mortgagor, the mortgagee enables him to commit a fraud. (2 Cruise’s Digest, 202.) Our statute, for the registry of mortgages, is a valuable and salutary substitute for the English practice of depositing the title-deeds, and it has effectually secured subsequent purchasers and mortgagees from all such mischief. But the point in dispute, in the present case, is, whether this act applies as well to mortgages of leasehold estates, as of estates of inheritance and for life. The words of the statute are, mortgages of any lands, tenements, and heredita
p. 522
merits.' I admit that, by the old rule of law, those words would comprehend only freehold estates, and not leases for years. (Bro. Tit. Done, 41.) The ancient idea of the dignity of the freehold, and of the small and insignificant value of a term for years, may, possibly, have led to the establishment of this rule; for the common law, prior to the statute of Gloucester, (6 Ed. 1.) looked upon a term as of no value, and afforded no protection to the interest of the termor against the tenant of the freehold. (2 Inst. 321.) So in the case of Rose v. Bartlett, (Cro. Car. 292.) it was held, that a devise of all one’s lands and tenements will carry only the freehold estate, provided the testator owned at the time, fee-simple lands, and a lease for years ; but that if he owned only the latter, then the lease for years would pass by the devise. This case is considered, at this day, as law, in England; but Baron Eyre, in the case of Turner v. Husler, (1 Bro. C. C. 79.) expressed his dissatisfaction at this old rule, and observed, that the inducements to the establishment of it had ceased, for that circumstances had now changed the value of leasehold estates, and that the words in the devise were large enough to include that species of estate.[*] The decision is only adhered to, in England, for the sake- of a uniform and stable rule of construction, and this is, undoubtedly, a good and sufficient reason, in that particular instance; but it does not follow, that the words lands and tenements must receive the same restricted construction, when found in a recent statute, introducing regulations on a new subject. The words, as Baron Eyre observed, are lai’ge enough to" reach an interest for years, as well as an estate for life, as they are both equally portions of interest carved out of the fee. In Rose v. Bartlett, it was agreed, that the words would extend to leases for years, if the testator possessed no higher interest on which they might operate. In the very modern case of Doe v. Williams, (1 H. Black. 25.) it was held, that the words lands
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and meadows would, even in a'deed, which is construed much more strictly than a will, pass a lease for years. These cases prove, then, that the words lands and tenements may, in certain cases, either in a deed or will, comprehend an estate for years; and I think it will be admitted, that a mortgage of a term for years, is within the reason and spirit of the registry act, because it is equally within the mischief, for which the remedy by the statute was provided. Without a registry of such mortgages, or without a deposite of the lease, it is agreed, that subsequent purchasers and mortgagees are exposed to frauds,- and the registry of the mortgage appears, to me, to be the preferable, because the most convenient and certain mode, of giving notice of the mortgage to all the world. The statute of 32 Hen. VIII. against selling pretended titles, speaks of any tight or title to any lands, tenements, gr hereditaments ; yet it was held, in the case of Partridge v. Strange & Croker, (1 Plowd. 87.) that a lease for years was a title within the act, because it was within the mischief guarded against. I conclude, therefore, that the mortgage, in the case before us, ought to be considered as coming within the registry act, and that it was, consequently, duly registered on the 14th of September, 1795.
Having considered this point, the next question is, whether the registry of a mortgage is not, in judgment of law, notice of such mortgage to all subsequent purchasers and mortgagees. This, I think, must be considered as a clear proposition. The provision in the act, that no mortgage, unless duly registered, shall defeat the title of a bona fide purchaser, shows the intent of the law to be, that subsequent purchasers must take notice, at their peril, of all registered mortgages. This has been the received construction, and, probably, the universal understanding on the subject.
With these propositions before us, how stands the equity of the claim of the appellants? Mrs. Johnson pur
p. 524
chases the lease of Shelden, with notice of Stagg's mort-g'a8’e- I mean not that she had actual notice, but that the law charges her with notice, because the mortgage was registered the day before the purchase. Knowing . ...... , of the mortgage, she must have perceived, that it embrace,j precjse]y the same period of time, and the same quantity of interest, that were included in the lease, and that if her purchase was valid and absolute, she effectually destroyed the mortgage. Taking the lease, with notice of the mortgage, she became subject to all the equity that existed in favour of Stagg, against Shelden, and precluded herself from setting up any defence which would not have been equally valid in the mouth of Shelden. If she could hold her purchase, she would enable Shelden to commit a fraud, by defeating Stagg of his security. -This a court of equity will never permit a purchaser, with notice, to do. It is a settled and sound principle, that a prior equitable lien will prevail over a subsequent purchase of the legal estate, if such subsequent purchaser be affected with notice. (Amb. 678. 2 Term, 490. Ashhurst, J.) This is the hinge on which the equity of this case turns.' If we establish that a mortgage for a term of years is within the registry act, and that the registry of this mortgage is equivalent to actual notice, we go far towards putting an end to this cause. The claim under the mortgage, which would be conclusive against Shelden is equally so against his assignee, with notice of that mortgage. Legal or constructive notice is here sufficient. Actual notice is, in many cases, required under the English registry acts, but' those are eases which go to devest a party of his priority, by charging.him with fraud. Here the prior ity is in favour of Stagg, as he had his mortgage registered before the purchase; and the negligence is on the part of the appellants, as the records ought to have been searched at the time of the conveyance, and so they would have been, by a truly vigilant purchaser. Nothing
p. 525
but actual fraud ought to devest Stagg of his priority and preference in this struggle. Constructive notice, by means of the registry, is decisive, that the subsequent purchaser knew of the mortgage, and must be bound by the equity attached to it.[1] Any other construction would be truly mischievous, as it would defeat the end of a most beneficial statute.
I am accordingly of opinion, that the decretal order below ought to be affirmed, and the cause remanded.
This being the unanimous opinion of the court, it was thereupon ordered, adjudged, and decreed, that the decree of his honour the chancellor be affirmed, with costs; and that his honour the chancellor cause the mortgaged premises to be sold for the satisfaction of the debt and interest, which shall be found due to the respondent, on the said bond and mortgage, with his costs in the court of chancery, and in this court; and (hat the surplus, if any, arising from such sale, be paid to the appellants, and that the proceedings be remitted, &c.
Judgment of affirmance.
(a) (a) It is not necessary, within any of the registry acts, that the assignment of a mortgage should be recorded. The recording of such assignment is not notice to a mortgagor, so as to render payments by him to the mortgagee in his wrong. 2 Cowen, 246.