Greene v. . Warnick

*223 Earl, J. This is a controversy between Deal and War-nick, appellant and respondent, as to the surplus money arising from a foreclosure of plaintiff’s mortgages. On the 16th day of May, 1872, Henry Deal and Mary 0. Greene, being the owners, subject to the plaintiff’s mortgage, of the lands sold at the foreclosure sale, conveyed the same to Amos S. Brown, and received from him two purchase-money mortgages, one to each, for the same amount. It was understood by the mortgagees that the mortgages were to be equal liens, that neither was to have priority over the other, and that both were to be recorded at the same time. On the eighteenth day of May the mortgages were taken to the clerk’s office, by the husband of Mrs. Greene, and delivered to the county clerk 'at the same time; but without the knowledge or consent of Deal, he recorded the Greene mortgage at three o’clock p. m., and the Deal mortgage fifteen minutes later, and so certified on the back of the mortgages. In September, 1873, Mrs. Greene assigned her mortgage to Elijah P. Greene, and that assignment was recorded September fifteenth, and he assigned it to Warnick the respondent, in May, 1874; and the last assignment was not recorded. The referee found and reported that Elijah P. Greene and Warnick were Iona fide purchasers of the mortgage without notice of the circumstances which could prevent either mortgage from taking preference over the other in the hands of the original mortgagee, and that the Greene mortgage owned by Warnick, by virtue of its priority on the record, had priority over the Deal mortgage, and that the entire surplus should be applied thereon. It is not questioned that if Deal and Mrs. Greene still held the mortgages, neither mortgage could have any preference over the other, and they would be entitled to share equally in the surplus money. Independently of the recording act, Mrs. Greene’s assignee would simply take her place, and the mortgage would continue subject to all the equities, both latent and patent, which attached to it before the assignment. This must now be regarded as the settled law in this State, whatever doubts may formerly have been entertained. *224 It lias been claimed, by some judges and decided in some cases, that the only application that can be made of the rule that an assignee of a chose in action takes it subject to all the equities existing against it in the hands of the assignor, is that the original debtor can make the same defence against the assignee that he could have made against the assignor. This was the view of Judge Habéis, in Corning v. Murray (3 Barb., 652), and it was upon that principle that he disposed of that case. But in Bush v. Lathrop (22 N. Y., 535) Judge Denio gave the question very thorough consideration, and after examining many authorities, reached the conclusion that the supposed distinction between latent equities and those existing between the parties to the instrument assigned, had no foundation, and that the assignee took the instrument, not only subject to all the equities between the parties thereto, but subject also to all the equities which third persons could enforce against the assignor. While that case has to some extent been overruled by the case of Moore v. The Metropolitan Bank (55 N. Y., 41), the law, as announced by Judge Denio, upon the point now under consideration, was not questioned; and it has been approved in other cases. All that was held in the latter case was, that a wrong application of the law was made in the former case. It was held that a bona fide purchaser for value of a non-negotiable chose in action from one upon whom the owner has, by assignment, conferred the apparent absolute ownership, where the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner who is estopped from asserting a title in hostility thereto. The decision was based upon the doctrine of estoppel which precluded the real owner from asserting his title against a bona fide purchaser from one upon whom he had conferred apparent ownership, and apparent absolute authority to convey. In Bush v. Lathrop, Moble, plaintiff’s intestate, owned a bond and mortgage for $1,400, and being indebted to one Preston in the sum of $268, gave him his note for that sum, and assigned the bond and mortgage by an absolute and *225 unconditional assignment to secure that note. Preston afterward assigned the bond and mortgage to Smith and Newton, and they afterward assigned to the defendant who paid full consideration. These assignments were all absolute in form expressing a full consideration, and there was nothing to impeach the good faith of either of the assignees. Judge Denio, applying the law as above stated, held that the subsequent assignments were all subject to Noble’s prior equities, and that he had the right to redeem. Under the authority of the case of Moore v. The Metropolitan Bank, Noble ought to have been held estopped from asserting his title to the bond and mortgage in consequence of his absolute assignment of the same, by which he conferred the apparent ownership upon Preston, and apparent authority to sell; and so far the decision of that case must now be considered to have been erroneous. But in such a case, the estoppel can only operate against the party whose act created it, and cannot affect the rights or equities of other persons. In this case there is nothing to estop Deal. He did nothing to induce a purchase of the Greene mortgage, and neither by his act or omission misled Warnick or his assignor. In Schafer v. Reilly (50 N. Y., 61) it was held that one who takes an "assignment of a mortgage takes it subject not only to any latent equities that.exist in favor of the mortgagor, but also subject to the latent equities in favor of third persons. Judge Allen, writing the opinion of the court, cites with approval the opinion of Judge Denio in Bush v. Lathrop, and says that it must, upon this question, be regarded “ as a just exposition of the law, as well upon principle as upon authority.” The same question came under consideration again in the case of The Trustees of Union College v. Wheeler, in the Commission of Appeals, * and Commissioner Dwight, in a learned opinion^ reviewing the cases, reached the same conclusion as to the effect of. an assignment of a mortgage upon latent equities. He said: “ It is well settled that an assignee of a mortgage must take it subject to the equities attending the original *226 transaction. If the mortgagee cannot himself enforce it, the assignee has no greater rights. The true test is, to inquire what can the mortgagee do by way of enforcement of it against the property mortgaged % What he can do the assignee can do, and no more.” In the language of Lord Thurlow, in Davies v. Austen (1 Ves, 247), often quoted with approval, “ a purchaser of a chose in action must always abide by the case of the person from whom he buys.” We think, therefore, unless the Green mortgage has obtained some advantage in the hands of Warnick by the record, it was not entitled to any priority over the Deal mortgage, and whether it obtained such advantage will now be considered. It is provided (1 B. S, 756, § 1) that “every conveyance of real estate, within this State hereafter made, shall be recorded in the office of the clerk of the county where such" real estate shall be situated ; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith, and for a valuable consideration of the same real estate or any portion thereof whose conveyance shall be first recorded.” By subsequent provisions (§§ 36, 37, 38, 41) it is clear that an assignment of a mortgage is a conveyance which may be recorded under the law. An unrecorded conveyance is declared void only as against a subsequent conveyance first recorded. The Greene' mortgage, although first recorded, was not a subsequent conveyance, and therefore these two mortgages, executed at the same time, are not within the statute. If Warnick may, by virtue of his assignment, be regarded as a subsequent purchaser of some interest in the real estate, then he can have no advantage from the statute, because Deal’s mortgage was recorded before the assignment, and although Warnick held a subsequent conveyance it was not first recorded. When Deal’s mortgage was placed upon record, containing a clause, as did the Greene mortgage, that it was given for the purchase-money, it showed that it was given at the same time with the Greene mortgage, and that neither mortgage could have any preference over the other. But the only effect of recording an assignment of a mort. *227 gage is to protect the assignee against a subsequent sale of the same mortgage. If the assignment be not recorded, the assignor can assign to another person, a purchaser in good faith, and for value, who may record his assignment first, and will then hold the mortgage against the first assignee. An assignment is a conveyance of the mortgage which, within the recording act, is a chattel real, and such conveyance, not recorded, is void against any subsequent purchaser “ of the same real estate,’’ to wit, the same mortgage. In Campbell v. Vedder (3 Keyes, 174), Judge Peckham said: “The only alteration made by the recording act of 1830, is that an assignment must now be recorded as against a subsequent bona fide purchaser of the mortgage assigned. A ‘ subsequent purchaser in good faith ’ in the recording act as to this case, means a purchaser of the mortgage assigned, not a purchaser of the premises.” In Gillig v. Maass (28 N. Y., 191), Judge Weight said: “ The recording statutes only apply to successive purchasers from the same sellers, and the record of the assignment of the mortgage would only be constructive notice of such assignment as against subsequent assigns of the mortgage.” And in Purdy v. Huntington (42 N. Y., 334, 338, 347), Judges Lott and Suthebland use language to the same effect. As Deal’s rights were not derived from Mrs. Greene subsequent to the assignment of her mortgage, and as his equities attached to that mortgage before its assignment, we are of opinion that the recording act has no application to this case, and that the two mortgages must share equally in the surplus in question. The order of the General Term must be reversed, and that of Special Term modified, so as to divide the surplus as above indicated, the costs of the appellant upon the appeals to the General Term and to this court to be first paid out of the fund, and the respondent to recover no costs. All concur. Order reversed and ordered accordingly. Footnotes [*] 61 N. Y., 88.