English v. Waples

Wright, J. The mortgage to Cooley, though subsequent in date, was filed for record before that to complainant. It is entitled to priority, therefore, unless Cooley, and those holding under him, had actual or constructive notice of its contents or existence, or such notice as was sufficient to put them, as reasonable men, upon inquiry, and particularly so, if such inquiry would certainly lead to a knowledge or discovery of the complainant’s right or equity. J And such notice would be sufficient if imparted before the completion of the contract, or the payment of the purchase money, though Pot until after the terms of the trade had been agreed- upon. Guided by these familiar principles, we are constrained to hold that this decree is erroneous. The testimony satisfies us that Cooley had actual notice of the mortgage to English, at the time he took his, and that Samuels had the same notice before he consummated his purchase. The testimony, it is true, is in some degree conflicting, but the decided preponderance is in favor of complainant’s position. As to Mason, he is affected with constructive notice, for, at the time of his purchase, the English mortgage was recorded. If he stands in the attitude of a purchaser, then he was bound to take notice of this mortgage, which was 61 made and recorded before he parted with his money, or negotiated his purchase. If he stand as an assignee of the mortgage, he is in no better condition. While the first mortgage was not recorded at the time Cooléy and Samuels acquired their rights, yet, as they had actual notice, the transfer by Samuels to Mason, who, at the time, had constructive notice, could place the last holder in no better condition nor give him any greater equities than the first, or original mortgagee. Reversed.