
    GRIFFIN TAYLOR v. GEORGE C. THOMAS AND WIFE, AND SOPHIA CRITTENTON.
    1. Between two mortgagees, neither having notice of the other’s mortgage, the mortgage first recorded has preference, though the other was first executed, Mid had been foreclosed, and the holder of it had bought the mortgaged premises at the sale under the decree in the foreclosure suit; the holder of the mortgage first recorded not having been made a party in that suit.
    2. On a bill by the holder of the mortgage last given, but first recorded, denying notice of the mortgage prior in date, and answer averring notice, and replication, the cause being brought to a hearing on bill, answer and replication, it was decreed for the complainant.
    The bill is for the foreclosure of a mortgage, dated February 25th, 1839, given by George 0. Thomas and Anna, his wife, to Griffin Taylor, recorded February 27th, 1839. The mortgage covers two distinct lots. The bill states that the complainant has discovered the record of a mortgage on the lot secondly described in his bill, purporting to have been made by said Thomas and wife to Sophia Crittenton, dated April 1st, 1836, but that the said mortgage was not registered till July 3d, 1840; and that he had no notice or knowledge of the existence of the mortgage of the said Sophia at the time of the making and recording of the mortgage to him. That the complainant has discovered the record of a deed from the sheriff of Essex to the said Sophia, dated January 21st, 1843, conveying to her the lot mentioned in her mortgage; and that it appears by that deed that it was made by virtue of an execution issued on a decree of this court, for the foreclosure of the said mortgage of the said Sophia, and the sale of the lot described therein, in a suit in which the said Sophia was complainant, and the said Thomas and wife, and others, were defendants; but that he, Taylor, was not made a party to that suit, and had no notice of it.
    The defendants put in their joint and several answer. They admit the bond and mortgage to the complainant, and the registry thereof, as stated in the bill, and that the mortgage to Sophia Crittenton is dated and was registered as. in the bill is stated. They admit the foreclosure of the mortgage to Sophia Crittenton, and the sale of the lot mentioned therein, by the sheriff of Essex, under the decree of this court, and the purchase thereof by her at the sheriff’s sale. And the defendants say that though the said mortgage to the said Sophia was not registered for several years after it was executed, the fact of its existence was known to the family of the said Thomas, and the interest thereon was paid from time to time; and that the failure to have it registered was on account of the ignorauce of the said Sophia of the necessity of having it registered. And the said Sophia says she has always understood and believed, and she so charges, that the complainant, at the time of the execution and delivery of his mortgage, was informed and had full notice of the mortgage. And she says she is informed and believes, and so charges, that it was the intention of the said George C. Thomas, when he gave the mortgage to the complainant, to include therein only the first lot therein mentioned, and not the lot which had been previously mortgaged to her; and that in the suit for the foreclosure of her mortgage, the complainant was not made a party, because neither she nor her counsel supposed, or had any idea that his mortgage covered any part of the land covered by her mortgage. And the defendant George C. Thomas says that the mortgage to the complainant was given on a compromise of an old disputed claim, and was intended to be given, and so understood by the parties at the time, on the first lot therein contained, and that it was not the understanding or intention of the parties, at the time of making the mortgage to the complainant, that it should include any part of the land mortgaged to the said Sophia.
    
      A. S. Hubbell, for the complainant.
    
      J. J. Chetwood, for the defendants.
   The Chancellor.

This cause was brought to a hearing on the bill, answer, and replication, no testimony being taken on either side.

The mortgage of the complainant is entitled to priority. It was on the defendant to show that the complainant had notice of the mortgage prior in date, by proof either of actual notice, or of circumstances from which notice could be inferred.

The foreclosure of the prior mortgage cannot affect the rights of this complainant, he not having been made a party in that suit.

Decree accordingly.  