Day v. Clark

The opinion of the court was delivered by Bennett, J. The object of the bill is to enjoin a suit at law, brought by Clark against the orator. Many of the facts in the [403] case are not matter of dispute. It seems that in January, 1838, one Amos M. Kimball executed to the Peaslee heirs, as they are called, his four notes of hand, and secured them by a mortgage of certain lands; but this mortgage was not put upon record until the 2th day of March, 1838. The orator was holden upon the four mortgage notes, as a co-promissor; and Kimball, soon after his mortgage to the Peaslee heirs, conveyed the same premises to Adin and Theron A. Miles, and took from them at the same time a mortgage to secure the purchase money, specified in certain notes, and both the deed and mortgage were recorded, before the mortgage to the Peaslee heirs was. The suit, which the orator seeks to enjoin, is brought by Clark on three of the notes given by Kimball to the Peaslees, and embraced in the Peaslee mortgage, and upon the back of which Day, the orator, put his name. These notes, Clark purchased in January, 1846. Day, who stands as surety upon the Peaslee notes, seeks to have the mortgage property applied in payment of these notes, and a further prosecution of the suit upon them enjoined. Clark sets up in his answer, and claims a paramount title as derived from Adin and Theron A. Miles, and it becomes important to see how the parties stand in this respect. Though Adin and Theron A. Miles first put their deed on record, yet if they had notice of the Peaslee mortgage, when they purchased, it would, as to them, have a priority. There may be some doubt whether they had such notice, at the time they purchased; but from the evidence we are inclined to the belief that they had. It is not important that we should take time with this part of the case, it being purely matter of fact. As we find Adin and Theron A. Miles had notice of the Peaslee mortgage, and Kimball-must necessarily have had notice, the Peaslee title must be the elder and letter title, so far as they are concerned. We find, however, that in 1843, Kimball assigned to one Luther M. Martin, the notes he held against Adin and Theron A. Miles, to the amount of four hundred dollars; and to one Allen Martin, to the amount of six hundred dollars; and to John H. Kimball to the amount of two hundred dollars; and to secure the notes, transfers also the Miles mortgage. Adin Miles then conveys his equity of redemption to Theron A. Miles, and Theron then conveys the whole equity of redemption to Granville R, Gale. Unless Gale [404] is to be affected with notice, he has a paramount title to the Peas-lee mortgage, and we do not see that he can be. When the Peas-lee deed was recorded, it is true, that was notice to all subsequent claimants, that there was such a mortgage; but the record of that mortgage was no notice to Gale, that when Adin and Theron A. Miles bought of Kimball they had notice of the Peaslee mortgage; and without such notice, the title to Gale derived from Adin and Theron A. Miles must override the Peaslee mortgage. It has long been settled, that if a fraudulent conveyance is made, and the fraudulent grantee conveys to a bona fide purchaser, without notice, his grantee takes a valid title; and if the grantee has notice, at the time he purchases, of an outstanding unrecorded deed, it will not do to affect his grantee with such notice, unless he knew that his grantor had such notice at the time he purchased. Unless this is shown, he has a right to rely upon the record title. In 1846, Clark bought in the mortgage notes assigned to the Martins and John II. Kimball, and took their title under the mortgage from Adin and Theron A. Miles, and also the title or equity of redemption from Gale, which they had before bought in. This enables Clark to stand upon Gale’s title; and if Gale had the first title, not being affected with the notice to the Mileses of the Peas-lee mortgage, then such title will pass under his deed to Clark, and be paramount to a title under the Peaslee mortgage. If the Peaslees could not have enforced their mortgage against Gale or his grantees, the orator cannot. There is no pretence but what Gale was a bona fide purchaser, for a valuable consideration, and his title was paramount to the Peaslee title; and as Clark has that title, together with the assignment of the mortgage title from the Martins and John H. Kimball, he has the paramount title. Those who took title under the mortgage from Amos M. Kimball must have been apprised that he knew of the unrecorded deed to the Peaslees, when he took the mortgage from the Mileses, as he was the person who executed it. But this does not apply to the title derived by the conveyance of their equity of redemption. With these views, the decree of the Chancellor must be affirmed, with costs.