
    Harriet H. Wilcox, Plaintiff, v. Julia Drought et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1901.)
    Surplus money proceedings — Powers of referee — Priority as between mortgages of even date — Bona fide purchaser.
    A referee appointed in a surplus money proceeding has power to inquire into and determine all questions of law and fact, usury, fraud and the like and every question tending to show the equities of the claimants, to the end that it may be therein decided finally and on the merits to whom such surplus moneys belong.
    Where the mortgagor executes two mortgages on the same day to two different creditors and delivers one to a creditor personally and sends the other for record and both are recorded on the same day one minute apart and the mortgage sent for record is not delivered to and accepted by that creditor until eleven days later, the mortgage delivered at once has a preference although recorded last, the rule being that where a creditor has acquired an actual lien on the land a subsequent acceptance by the rival creditor of his mortgage can take effect only from the time of his acceptance.
    Where both mortgagees stand upon an equality, within the recording act, so far as regards knowledge and notice, the mortgagee whose mortgage was given and taken for a present consideration due him by the mortgagor is entitled to a preference, in reaching surplus moneys arising upon a foreclosure of other property of the mortgagor, over the mortgagee whose mortgage represents an antecedent debt due him by the mortgagor.
    
      Motion to confirm referee’s report as to surplus.
    Foster, Eustis & Coleman, for plaintiff.
    Mark G. Holstein, for O’Neill, claimant.
    Alexander & Ash, for Simons & Moersfelder.
    Geo. A. C. Barnett, for Lackey.
    Edward M. Bliven, for Reukauff.
    Venino & Sichel, for Drought.
    Max Altmayer, for Cusick & Ryan.
    Isaac Metzger, for Metzger.
   McAdam, J.

Concerning the nature and extent of the powers of a referee in surplus money proceedings the court, in Tator v. Adams, 20 Hun, 132, says: Although there.had previously been some doubt as to the powers of referees in proceedings to distribute surplus moneys, the deceision in Berger v. Snedeker, 21 Alb. L. J. 54, has settled the matter. It is held, and wisely held in that case, that a question of fraud may be investigated before the referee, and it follows, by analogy, that every question may be examined tending to show the equities of the claimants.” The court, therefore, held that the referee had authority in such a proceeding to determine that a provision contained in a mortgage was inserted by mistake, the court remarking: “ In the present case there is no doubt that the clause in question was inserted by accident and mistake. In an action for the purpose the mortgage would be reformed. There is no need of such an action to determine the rights to these surplus moneys. They can be determined as well in the present proceeding.” A judgment creditor may contest and try the validity of a conveyance from a mortgagor to his wife upon a reference to determine as to the distribution of surplus moneys. Rogers v. Tvers, 23 Hun, 424. So the referee may inquire into and determine all questions of law and fact, usury, fraud or the like, and every question tending to show the equities of the claimant, to the end that it may be decided in such proceedings finally and on the merits to whom such surplus moneys belong. McRoberts v. Pooley, 12 Civ. Pro: 139; Mutual L. I. Co. v. Bowers, 47 Barb. 618; Baker v. Baker, 70 Hun, 95; Kingsland v. Chetwood, 39 id. 602; Schafer v. Reilly, 50 N. Y. 61; Fliess v. Buckley, 90 id. 286; Halsted v. Halsted, 55 id. 442;. Bergen v. Carman, 79 id. 146; Bowen v. Kaughran, 1 N. Y. St. Repr. 121; Crombie v. Rosenstock, 19 Abb. N. Y. 316. In Hulbert v. McKay, 8 Paige, 651, it was held that an incumbrancer or lienor who has neglected to file notice of his claim upon the surplus moneys may appear before the referee pending reference as to such surplus and file his claim in proper manner. He will then be entitled to be heard on the reference as to the validity of his claim upon such equitable terms as the referee may direct.

Although the learned referee, in adjusting the disputes of the various claimants, seems to have had these rules in mind, it is apparent that as between the claimants Lackey and Reukauff the rules were not fully complied with. • Lackey’s claim to the surplus was based on an assignment of a bond and mortgage to him by Reukauff under circumstances showing that the assignment was made solely for the convenience of the assignor and the business concern represented by him, and without any consideration whatever given by the assignee. Lackey claimed, however, that subsequent to the assignment he and Reukauff agreed that the assignee should hold the assignment in consid- . eration of an indebtedness from the assignor, or the business concern represented by him, on the date of the agreement for rent, work, labor and services, and in further consideration of Lackey’s assumption, at the request of Reukauff, of the liability of a surety on a bond given by Reukauff to discharge an attachment. The amount of Lackey’s liability as surety was $300, and the liability on the other items amounted to $94.50, which sums together with $35 thereafter loaned to Reukauff amount to $429.50. The amount due on the bond and mortgage was $947.53, and this sum the learned referee allowed to Lackey, although Lackey admitted -that he was not entitled to that amount; and the reason given for awarding the excessive sum is that upon ,the record as it stood the rights of the claimants could not be definitely adjusted. On the evidence presented the referee would have been warranted in deducting the aforesaid sum of $429.50 from $947.53, the amount due on the bond and mortgage, and awarding the balance, $518.03, to Reukauff; and that is the disposition of the contending •claims made by the court on this motion.

As to the rival claims of Simons & Moersfelder and O’Neill, it appears that the attorney for the mortgagor on May 12, 1900, at ten forty-eight A. m., delivered to the register of the county of Hew York a mortgage to Simons & Moersfelder for record; that said mortgage was dated May 11, 1900, and that it was not delivered to the mortgagees until May twenty-second following; that the mortgage was given to secure an antecedent indebtedness to the mortgagees, for which indebtedness they held the mortgagor’s overdue and protested notes; and that the mortgagees did not on the strength of the mortgage relinquish any security, divest themselves of any rights or do any act to their prejudice. It further appears that the O’Neill mortgage was dated the same day as the Simons & Moersfelder mortgage; that it was given to the mortgagee in consideration of the release by one Flood of claims which said Flood had against the mortgagor for work, labor and services and materials furnished upon other real property of the mortgagor, and for which work and labor Flood threatened to file a mechanic’s lien; that between seven and nine o’clock in the morning of May 12, 1900, said mortgage was delivered to O’Neill, and that it was recorded in the register’s office of Hew York county the same day at eleven forty-nine a. m., one minute after the recording of the Simons & Moersfelder mortgage. As far as knowledge or notice is concerned the mortgagees were purchasers in good faith.

Under the decisions it would seem that the Simons & Moersfelder mortgage is subsequent to the one given O’Neill; for, although as between the parties to the instrument a delivery by the mortgagor to the register would constitute a delivery to, the mortgagee (Lady Superior v. McNamara, 3 Barb. Ch. 378; Munoz v. Wilson, 111 N. Y. 295; Ford v. McCarthy, 77 Hun, 612), such delivery was not effective against O’Heill; the rule being that a subsequent acceptance by the mortgagee of the mortgage delivered to a recording officer or to an unauthorized third person gives effect to it from the time of its first delivery as between the parties to it; but as to persons who have acquired title to the property or an interest in it, or lien upon it, through or under the mortgagor before the time of the actual acceptance of the deed by the mortgagee, the subsequent acceptance gives effect to the deed only from the time of such acceptance. Parmelee v. Simpson, 5 Wall. 81; 1 Jones Mort. (5th ed.), § 85; Foster v. Beardsley Scythe Co., 47 Barb. 505.

It follows that if the Simons & Moersfelder mortgage was not given for a valuable consideration within the meaning of the recording acts the O’Neill mortgage must prevail. To constitute a purchaser in good faith and for a valuable consideration under said acts the party receiving the subsequent conveyance must not only have received the same without notice of the prior unrecorded deed, but he must have received the same upon some new consideration advanced at the time, or must have relinquished some security for a pre-existing debt. Pickett v. Barron, 29 Barb. 505; 1 Jones Mort. (5th ed.), § 460; Dickerson v. Tillinghast, 4 Paige, 215; Webster v. Van Steenbergh, 46 Barb. 211; Wood v. Robinson, 22 N. Y. 564; Weaver v. Barden, 49 id. 286; De Lancey v. Stearns, 66 id. 158. The evidence of Simons & Moersfelder falls short of these requirements. Moreover, the nominal consideration recited in the Simons & Moersfelder mortgage does not constitute a valuable consideration within the meaning of the recording acts, for the fact is that the real and only consideration was- the existing and precedent indebtedness of the mortgagor. See Ten Eyck v. Witbeck, 135 N. Y. 40.

The referee’s report, except as hereinbefore modified as to the Lackey and Reukauff claims, will, therefore, be confirmed.

Referee’s report, except as hereinbefore modified as to Lackey and Reukauff claims, confirmed.  