Dewey v. Ingersoll

Marston, J. According to the undisputed facts in this case, the defendant Agnes A. Dakin was in the actual unequivocal possession of a portion of the mortgaged premises, claiming title thereto under her deed of November 25, 1872, which had been recorded November 26th, at the time complainants released from their mortgage a part of the premises in the fall of 1873. This release does not appear to have been made at her request, or with her consent or knowledge, and the important question is whether complainants at the time of the release, had notice of Mrs. Dakin’s rights in the premises. If they did have, it is not claimed that they can, under the facts in this case, subject her portion to the payment of their mortgage. A mortgagee is not bound to make an examination of the records before releasing a portion of the mortgaged premises, as the record of a subsequent conveyance or mortgage on the whole or a portion of the mortgaged premises would not be notice to him. James v. Brown, 11 Mich., 26; Thomas on Mortgages, 137; 1 Jones on Mortgages, § 562. But the recording of such subsequent conveyances may become material where it [19] appears the prior mortgagee had notice of facts and circumstances sufficient to put a careful, prudent man upon inquiry. In such a case the public records furnish the information if he desires to act fairly, and a-failure to examine them would show an intentional disregard by him of the rights of the subsequent purchaser. See authorities above cited. The mortgaged premises in this case were upon one of the principal streets in the village where the mortgagees resided. Mrs. Dakin promptly recorded her deed and went into the actual possession of the premises, made improvements and resided thereon, and there is evidence tending to show that one of the mortgagees had actual notice of these facts; and he, although examined as a witness, did not deny having notice. Under such circumstances we are of opinion that he had sufficient notice to put him upon inquiry, and that he is chargeable with a knowledge of the facts which such inquiry would have given. I am of opinion that the decree should be affirmed with costs. The other Justices concurred.