Patterson v. Irvin

McCLELLAN, o. J. No evidence was adduced or proposed tending to show that John Irvin received any notice as agent of the plaintiff or while engaged in or about any act or transaction of such agency of the mortgage executed by Sinclair to the defendant. To the contrary, while defendant offered evidence to show that he had informed John Irvin, of the existence of such mortgage, it was made to affirmatively appear that this information, assuming it to have been given at all, was imparted upon a casual occasion when no act or transaction of the agency was pending and had no reference to the plaintiff nor to his business. This information to John Irvin, therefore, was not notice to the plaintiff of the existence of' the mortgage to Patterson, conceding that John Irvin was the agent of W. F. Irvin, the plaintiff, in the most general and comprehensive sense, and that the fact of such general agency was well known in. the vicinity. It follows that the rulings of the court upon the admissibility of proposed testimony as to the existence and scope of the agency were wholly immaterial, [405] the fact of the agency and. its character being. itself wholly immaterial. The mortgage in question was not recorded, and hence plaintiff had no constructive notice of its existence. The evidence was without conflict to the effect that the plaintiff had no actual notice of this mortgage, when the mortgage from Sinclair to him was executed. This latter mortgage was not taken to secure an antecedent debt owing by Sinclair to the plaintiff, but to secure the repayment of money presently paid by plaintiff for Sinclair; and the doctrine that one who takes a mortgage to secure an antecedent debt cannot claim protection from a prior unrecorded mortgage as a tona -fide purchaser for value, has no application to the cause. Plaintiff having no notice, actual or constructive, of Patterson’s prior mortgage, and sustaining the attitude of a purchaser for value of the property embraced therein, that instrument had no bearing upon his right to recover in this case, and it was properly excluded from the evidence. Affirmed. Tyson, Simpson and Anderson, J.J., concur.