
    James J. Phelan, App’lt, v. Margaret Brady, Impl’d, et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed March 21, 1890.)
    
    1. Mortgage—Foreclosure—Possession of property, when notice of title.
    The fact that a building is occupied by a large number of tenants does not change the rule that actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property and to all the world of the existence of any right which the person in possession is able to establish.
    2. Sami^.
    Plaintiff loaned $2,000 to John E. Murphy upon a tenement building or block containing forty-three rooms or apartments, occupied by twenty different occupants or families, tenants from month to month, except the defendant Margaret Brady, who kept a liquor store in part of the building i and occupied two living rooms in the rear of the store, and claimed to be the owner of the premises and collecting rent from the other tenants, although plaintiff had no actual notice of her claim at the time he made .the loan. But she had received a deed from the said John E. Murphy which she did not record until subsequent to the execution and record of plaintiff’s mortgage. Held, that Mrs. Brady’s title, and possession was sufficient to defeat any claim under plaintiff’s mortgage.
    Appeal- from judgment of supreme court, general term, first department, affirming judgment of special term in favor of defendant.
    
      N. B. Hbxsie, for app’lt; William B. Wyatt, for resp’ts.
    
      
       Affirming 16 N. Y. State Rep., 942.
    
   O’Brien, J.

On the 23rd day' of July, 1886, the plaintiff loaned to the defendant John E. Murphy the sum of $2,000 and took from him his bond, whereby he promised to pay the same,with interest semi-annually, in two" years thereafter. On the same day, and as collateral security for the payment of the bond, Murphy and his wife executed, acknowledged and delivered to the plaintiff a mortgage. upon certain real estate in the city of Mew York. The premises thus mortgaged consisted of a tenement building, or block, containing forty-three rooms or apartments, then occupied by twenty different occupants or families, as tenants from month to month, except that three of these apartments were occupied by the defendant Margaret Brady and her husband, who kept a liquor store in part of the building, and they occupied two living rooms in the rear of the store, the wife claiming to be the owner of the premises and collecting rents from the other tenants.

The plaintiff at the time he made the loan had no actual notice or knowledge of any title to the premises in Mrs. Brady, or any claim on her part to be the owner. When the first installment of interest became due upon the mortgage default was made, and the plaintiff brought this action to foreclose under a provision in the mortgage making the whole sum due upon default in the payment of the interest when due.

Margaret Brady being in'possession, was made a party to the action, and she answered, setting up the defense that prior to the execution and delivery of the plaintiff’s mortgage, and on or about the 5th of May, 1886, she became the absolute owner in fee simple of the premises described in the complaint and in the mortgage and of the whole thereof, and that upon becoming such owner she took possession of the same, claiming to be the owner and actually owning the same; and that she has ever since continued in actual, open and notorious occupation and possession of the premises as such owner, and has ever since and still owns the same in fee simple.

The trial court found that in March, 1886, Margaret Brady employed one Michael J. Murphy, an attorney, to examine the title to the premises in question and purchase the same for her, and before May 7, 1886, she gave said Murphy, as her attorney, the sum of $6,700 to be used as part of the purchase money; that Murphy procured a contract for the sale of the premises to be made between Mary S. Trimble, who then owned the same, and his son, John E. Murphy, the defendant, in which contract the said John E. Murphy appeared to be the purchaser of the premises; that upon the execution of this contract about March 19, 1886, Michael J. Murphy paid to Mrs. Trimble part of the sum0 of $6,700 which he had received for that purpose from Mrs. Brady, and the rest of that sum was paid to her on the 7th of May, 1886; that the balance of the purchase price, namely, $16,000, was secured to be paid to Mrs. Trimble by a purchase money mortgage; that on the same day the purchase price was thus paid, Mrs. Brady’s lawyer took from Mrs. Trimble a deed of the premises to his son, John E. Murphy, and the deed was. duly recorded on that day; that on the 1st of May, 1886, Mrs. Brady took possession of the premises under the contract, claiming to own the same, and has ever since remained in possession, and occupied the same herself and by her tenants ; that she rented certain rooms in the building to tenants immediately thereafter; that she discharged the housekeeper, who had before that date rented the premises and collected the rents for Mrs. Trimble, and moved herself into the rooms formerly occupied by the housekeeper, and that she has received the rents ever since the 1st of May, 1886; that on the 5th of May of that year a deed conveying the premises to Mrs. Brady was executed and duly acknowledged by the defendant, John E. Murphy, and his wife, and by him delivered to his son, Michael J. Murphy, as agent and attorney for Mrs. Brady; that Murphy never had any interest in the premises, never paid any part of the consideration money, and never had possession of the same or any part thereof; that the said Michael J. Murphy retained the deed to Mrs. Brady in his possession until not later than the 2oth of August, 1886, when he delivered the same to her, and the same was recorded, by her on the 26th of August, 1886, subsequent to the execution, delivery and record of the plaintiff’s mortgage.

The trial court held that Mrs. Brady’s title and possession was sufficient to defeat any claim under the plaintiff’s mortgage, and dismissed the complaint, and this judgment has been affirmed by the general term.

At the time of the execution' and delivery of the mortgage- to the plaintiff, the defendant, Mrs. Brady, was in the actual possession of the premises under a perfectly valid, but unrecorded deed. Her title must, therefore, prevail as against the plaintiff. It matters not, so far as Mrs. Brady is concerned, that the plaintiff in good faith advanced his money upon an apparently perfect record title of the defendant, John E. Murphy. ¡Nor is it of any consequence, so far as this question is concerned, whether the plaintiff was in fact ignorant of any right or claim of Mrs. Brady to the premises. It is enough that she was in possession under her deed and the contract of purchase, as that fact operated in law as noti'ceto the plaintiff of all her rights.

It may be true, as has been argued by plaintiff’s counsel, that. when a party takes a conveyance of property situated as this was, occupied by numerous tenants, it would be inconvenient and difficult for him to ascertain the rights or interests that are claimed by all or any of them. But this circumstance cannot change the rule. Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world, of the existence of any right which the person in possession is able to establish. Governeur v. Lynch, 2 Paige Ch., 300; Bank of Orleans v. Flagg, 3 Barb. Ch., 318; Moyer v. Hinman, 13 N. Y., 184 ; Tuttle v. Jackson, 6 Wend., 213; Trustees of Union College v. Wheeler, 61 N. Y., 88, 98; Cavalli v. Allen, 57 id., 517.

The circumstance that Mrs. Brady and her husband occupied the store and a living apartment in the building prior to the time that she went into possession under her contract of purchase as tenants under Mrs. Trimble, the then owner, cannot aid the plaintiff. It does not appear that he ever heard of that fact till after the commencement of this suit, and we cannot perceive how it would affect the result if he had. The trial court found that prior to making the loan the plaintiff was upon the premises for other purposes, and that then by making inquiry he could have ascertained the rights of Mrs. Brady in the property, and while the absence of such a finding would not change the result, it shows that the plaintiff’s loss is to be attributed to his confidence in Murphy, who probably deceived him, and to his failure to take notice of Mrs. Brady’s possession.

The judgment should be affirmed, with costs.

All concur.  