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Reynolds v. Webster

24 N.Y.S. 1133 Court N.Y. Gen. Term Decision date 1893-09-23 English

Delivered by PARKER, J.

Contents

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p. 1133
REYNOLDS et al. v. WEBSTER et al.
(Supreme Court, General Term, Fourth Department.
September 23, 1893.)

Headnote

1. Mortgages—Priority— Senior Umreooroed Mortg'oe.
The lien of a mortgage given to secure future advances Is superior to the lien of a prior unrecorded purchase-money mortgage as to all sums advanced within the limits of the amount stated in the subsequent mortgage, without notice of such prior mortgage.
2. Same—Notice-—Recording.
The recording of such prior mortgage before advances are made, but after the mortgage for advances was given, is not constructive notice to the holder of the latter mortgage.
Appeal from special term.
Action by Frank B. Reynolds and others against John A. Webster and others to foreclose a mortgage executed by one Covell to secure future advances, in which defendant Webster set up a prior mortgage given by Covell to secure the unpaid purchase money of the same premises, but which was not recorded until after plaintiffs recorded theirs. From a judgment for plaintiffs as to all sums advanced by them without notice of the prior mortgage, defendants appeal.
Affirmed.
Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.
M. M. Waters, for appellants.
F. H. Everhart, for respondents.

The defendant Webster, by his conveyance to Covell, transferred all his title and estate in the premises, and, upon receiving back the mortgage for a part of the purchase price, he acquired only a l'ien thereon to that amount. Bryan v. Butts, 27 Barb. 503 ; Trustees v. Wheeler, 61 N. Y. 88 . He then stood in the position of an ordinary mortgagee for value, having transferred both title and possession to Covell. The case cited from 59 N. Y. 541 , (Dusenbury v. Hulbert,) does not hold any different rule. Such case merely decides that intermediate the receipt of the title by Covell and the delivery back of the mortgage, it being all one transaction, Covell could not have given any lien that would be superior to such purchase-money mortgage. While Webster held Ms mortgage, and before he had it recorded, the plaintiffs "received the mortgage which they are now seeking to foreclose, and they promptly put it on record in advance of Webster. Their mortgage was

p. 1134
collateral to a bond in the penalty of $3,000, conditioned to pay at maturity any and all balances of account, money, notes, etc., and: indebtedness of any kind at any time hereafter owing by the firm, of Coveil & Dickinson, or either of them, to the plaintiffs, and was; intended as security for future sales of cigars, from time to time,., to be sold to such firm by the plaintiffs. Such a mortgage is a valid security, and is a conveyance within the recording acts... Ackerman v. Hunsicker, 85 N. Y. 43 . Both Webster and the plaintiffs, therefore, stood in their relations to Covell as mortgagees of' the same premises, the security of each being liable to be affected1 by the provisions of the recording act. That act makes a prior,, unrecorded mortgage void as against a subsequent mortgagee in good faith, and for value, whose mortgage is first duly recorded-Webster’s mortgage, therefore, although prior to plaintiffs’, became void as to it, provided plaintiffs are to be deemed purchasers in; good faith and for value.

On behalf of Webster, it is claimed that plaintiffs were not purchasers for value, because at the time they took and recorded their-mortgage they had advanced nothing upon it; also, that at most they were purchasers for value to the extent only of the amount advanced at the time Webster’s mortgage was recorded, Viz. $90, and that hence, under the recording act, plaintiffs’ mortgage is made-superior to Webster’s to the extent of $90 only. The case of Ackerman v. Hunsicker, above cited, decides both of such propositions against the defendants. It is there said that such a mortgage is-a potential lien for its full amount, of which subsequent purchasers or incumbrancers have notice through the record, and the rule is-distinctly laid down that “a party who takes a mortgage to secure-further optional advances, upon recording his mortgage, is protected against intervening liens, for advances made upon the faith and within the limits of the security, until he has notice of such intervening lien, and that the recording of the subsequent lien is not constructive notice to him.” See, also, Farr v. Nichols, 132 N. Y. 327 , 30 N.

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