
    Adam Kirchhoff, Appellant, v. Claire Gerli, Respondent, Impleaded with Helen M. Waldo and Julius Kusche, Defendants.
    Second Department,
    January 7, 1916.
    Mortgage —foreclosure — Recording Acts —claim of priority under prior unrecorded mortgage — constructive notice — burden of proof—evidence not establishing constructive notice of prior mortgage — construction—mortgage to secure payments to become due on building contract.
    Where in a suit to foreclose a mortgage a defendant, holding another mortgage which antedates the plaintiff’s mortgage but was not recorded until after that of the plaintiff, claims priority on the theory that the plaintiff had knowledge of the prior incumbrance and so is not entitled to the benefit of the Recording Act, she is under the burden of affirmatively establishing said plea.
    In the suit of foreclosure it appeared that the plaintiff had agreed to erect a building on the lands of the defendant mortgagor and that his mortgage was made to secure a portion of the contract price. As the lands of the mortgagor were incumbered by a prior blanket mortgage, the mortgagee, in consideration of the payment of certain moneys to her, agreed in writing to release a portion of the lands from the lien of her mortgage in order that the mortgagor might procure a building loan, the plaintiff on his part agreeing with said mortgagee that part of the consideration for the release of a portion of the mortgage should be paid by him to her out of the building loan, the balance of the consideration for the release to be paid from the final installment of the contract price of the
    ' building when it became due. The defendant on her part confirmed the terms of the building contract and assured the plaintiff that she would
    
      release a portion of the lands from the lien of her blanket mortgage. It further appeared that, without the knowledge of the plaintiff and after the release of a portion of the lands from the lien of the blanket mortgage, the owner secured the payment of the balance of the moneys due for the release by executing a new mortgage to the mortgagee. This new mortgage, although antedating that of the plaintiff, was not acknowledged or recorded until after the mortgage of the plaintiff had been placed on record. Evidence examined, and Held, that the plaintiff was justified in believing that the several agreements between the parties would be carried out and that there was nothing to charge him with actual or constructive notice of the new mortgage which the owner executed to his codefendant after the release by her, so that the plaintiff, being the first to record his mortgage, was entitled to priority.
    Constructive notice of prior unrecorded mortgage discussed, per Jesks, P. J.
    The mortgage to the plaintiff executed to secure a portion of the contract price for the erection of the building was not void for lack of consideration, especially where, at the time of the record of the mortgage to the defendant the plaintiff had done work on the building of a value in excess of the amount of his mortgage.
    Appeal by the plaintiff, Adam Kirchhoff, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Westchester on the 25th day of June, 1915, upon the decision of the court after a trial at the Westchester Special Term.
    . William S. Beers [Q. Henry MaMstedt with him on the brief], for the appellant.
    
      Joseph Hirschman [Nathaniel Levy with him on the brief], for the respondent.
   Jerks, P. J.:

When plaintiff sued to foreclose his mortgage made by defendant Waldo, the defendant Gerli answered that her mortgage, made also by Waldo, was a prior lien and that plaintiff’s mortgage had no present consideration. These questions alone were tried by the Special Term, which found for the defendant Gerli and adjudged a foreclosure of her mortgage in accord with her prayer. Plaintiff’s mortgage was recorded on July 11, 1913, and defendant’s mortgage on August 8, 1913. Gerli bore the burden to establish her affirmative pleas. (Jones Mort. [6th ed.] § 554.) The court found that plaintiff’s mortgage, dated May 20, 1913, was delivered upon that day, and that Gerli’s mortgage was executed, acknowledged and delivered on April 29th in that year, although it would seem that it was not acknowledged until August 6,1913.

Plaintiff made a building contract with Waldo May 13, 1913, whereby he agreed to build a house up.on a part of a tract of land owned by Waldo for $13,500. This improvement required 9 acres. Gerli had a blanket mortgage upon the entire tract for $37,000, which then had been increased by arrears of interest and unpaid taxes to some $50,000. The building contract, in accord with an agreement of April 29, 1913, provided the prerequisite undertakings of Waldo that Gerli would release the 9 acres from her blanket mortgage on condition of payments to her of $3,300 and $1,500, and that Waldo should procure a building loan of $15,500 from a certain title company upon mortgage of the said 9 acres. The said building agreement also provided that one-half of the said contract price of $13,500 should be paid by a mortgage made to plaintiff by Waldo, and the other half should be paid in cash on completion of his contract. And the said building contract also provided that the said $3,300 should be paid to Gerli by the plaintiff out of the building loan and the said $1,500 should be paid from the final installment thereof. Gerli made an agreement with the plaintiff which confirmed these provisions and assured her release of the said 9 acres of land.

It was natural that the plaintiff and Waldo would seek to release these 9 acres from Gerli’s blanket mortgage, because the scheme required a building loan secured by mortgage thereon and one-half of plaintiff’s contract price to be met by a mortgage thereon. And so it was written in the building agreement that the said mortgage to the plaintiff “shall be subordinate in lien to the said building-loan, * * * but that the said bond and mortgage * * * shall not be subordinate to any other lien or liens except as aforesaid.” The said mortgage for $1,500 from Waldo to Gerli was provided for in an agreement between those two persons only, dated April 29,1913. There is no question that this $1,500 thereby secured is the $1,500 for which provision was made in the said building agreement. It seems plain that by this said agreement of April 29, 1913, between Waldo and Gerli, made to settle their differences, they left undisturbed the provision in the building agreement for the payment of the $3,300 and substituted a mortgage for the provision for the payment of the $1,500. But where is the proof that brings such change home to the plaintiff? The proof of any actual knowledge, if it exist at all, is so meagre as to he negligible. The plaintiff testifies to his entire ignorance of any such mortgage, and he is corroborated absolutely by his attorney who acted for him throughout the transactions. The plaintiff testifies that of course he knew óf the $1,500 that was to be paid on the account of Waldo to Gerli, but he testifies that he understood always that such payment was provided for in the building agreement. Not only had he the right to rest upon that specific provision, but plaintiff’s separate agreement with Waldo referred to and reiterated such provision. Such provision was explicit: “ The balance of the proceeds of said building loan * * * to wit, Nine thousand seven hundred twelve and 50/100 ($9,712.50) Dollars, shall be disbursed by the Contractor for the account of the Owner, as follows: by paying out of the last installment the sum of Fifteen hundred ($1,500) Dollars to Claire Gerli in the payment and satisfaction of an indebtedness of the Owner for such amount;” and the said agreement between plaintiff and Gerli, after referring to the building agreement, makes mention of the terms thereof which are embodied in the agreement, “ upon payment to said Claire Gerli of Three thousand three hundred ($3,300) Dollars, at the time of executing the release or satisfaction of said mortgage and a further sum of Fifteen hundred ($1,500) Dollars to be paid therefor upon completion of said certain building.” I find in none of the writings to which plaintiff was party any suggestion of the security of a mortgage for the said $1,500. The defendant invokes the equitable doctrine, that actual notice may he established by circumstantial evidence, in that the “means of knowledge, with the duty of using them, are in equity equivalent to knowledge itself.” (Jones Morí. [6th ed.] § 545.) But the same learned author also says: “But in general it may be said that a mere want of caution does not charge a purchaser with notice. It is not enough that he

might entertain, a mere suspicion of an unknown equity or interest. It is not enough that an over-prudent and cautious man, if his attention had been called to the suspicious circumstance, would have been likely to seek an explanation of it. There must be some clear neglect to inquire, after having some notice of some definite equity or interest in another. The mere fact that a purchaser knows of the existence of a debt for unpaid purchase-money does not make him chargeable with notice of an unrecorded mortgage securing such purchase money.” (§ 547.) The notice requisite to put plaintiff on inquiry is defined in Reed v. Gannon (50 N. Y. 345, 349). (See, too, Kingsland v. Fuller, 157 N. Y. 507, 511; Seymour v. Seymour, 28 App. Div. 495; Thomas Mort. [3d ed.] § 515.) Was there in the facts and circumstances anything that would “‘lead any honest man, using ordinary caution’” (Reed v. Gannon, supra), in plaintiff’s shoes, to make further inquiries as to the payment or the security for the payment of the debt of $1,500 by Waldo to Gerli ? He knew.that such payment had been specifically provided for with the assent of all parties in an adequate way. Had he any reason to inquire whether, in variance of or modification of such agreements, and without notice to him as a party to one of such agreements, Waldo and Gerli had agreed to substitute this mortgage for the said provision of payment ? After the parties had carried out a scheme to release the land from one mortgage of Gerli’s so that obviously it might afford the better security, both for the building loan mortgage and for plaintiff’s mortgage, had he any reason to suppose that it would be almost instantly again incumbered by another mortgage to Gerli and in departure from that scheme ? The defendant was bound to show by clear and satisfactory proof that when this mortgage was executed and delivered the plaintiff then had knowledge, or that the facts were such that he was chargeable with implied knowledge of the existence of this mortgage which was to be a lien upon the property. (Constant v. University of Rochester, 133 N. Y. 640.) I think that the defendant did not sustain the burden, and that the priority of record must prevail. (See Constant v. University of Rochester, supra.)

I think that the plaintiff’s mortgage could not be declared invalid upon the theory that there was no consideration for it. (See Hyman v. Hauff, 138 N. Y. 48, 54; Huntington v. Kneeland, 102 App. Div. 284, 292, and authorities cited; Ackerman v. Hunsicker, 85 N. Y. 43; Jones Mort. [6th ed.] § 364; Thomas Mort. [3d ed.] §§ 206, 211, 213.) It appears that up to August 8, 1913, the time of record of the said mortgage for $1,500, the plaintiff had done work under his contract to the value of between $6,000 and $7,000, whereas his mortgage was for less than $6,000. (See Hall v. Crouse, 13 Hun, 557.)

The judgment must he reversed and a new trial must he granted, costs to abide the final award of costs.

Carr, Mills, Rich and Putnam, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  