
    Edgar A. Briggs et al., as Executors, etc., Resp’ts, v. Elizabeth C. Thompson et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1895.)
    
    Mortgage — Assignment—Notice.
    The possession of a portion of the mortgaged premises by the grantee of the mortgagor is not constructive notice to the assignee of the mortgage of an unrecorded release of such part of the mortgaged premises, from the mortgage.
    Appeal from a judgment in favor of plaintiffs.
    
      M. A. Fowler, for app’lts; Hackett & Williams, for resp’ts.
   Brown, P. J.

The question presented on this appeal is whether the plaintiffs, who are assignees of a mortgage, can enforce it against a purchaser of a part of the mortgaged property, who is in possession,, and who holds his title under a prior recorded deed from the mortgagor and a prior unrecorded release from the mortgagee. The facts of the case are undisputed. On May 4, 1863, Jacob M. Ousterhout executed the mortgage in question to David and Mary Fish. On May 2, 1867, the mortgages released to Ousterhout twenty-seven acres of the mortgaged land, and on the same day Ousterhout conveyed said twenty-seven acres to Benjamin Ilicks. The deed from Ousterhout to Hicks was recorded on June 27, 1868, but the release had not been recorded at the time of the commencement of this action. Benjamin Hicks conveyed the land to [Try Hicks in 1875, and the deed was recorded. On May 15, 1876, the mortgage and accompanying bond were duly assigned to Simmons White, and by several mesne assignments were transferred to the plaintiffs’ testator, who became the owner thereof on May 1, 1882. All of the several assignments of the bond and'mortgage were duly recorded. Benjamin Hicks and Ousterhout owned adjoining farms in the town of Milan, Dutchess county. The property which is the subject of this litigation consists of twenty-seven acres of land, all inclosed, of which three and one-half acres are woodland. It was- on the northwest corner of the farm, some distance from the highway, without any building on it. While Ousterhout owned it, he cultivated it for the •usual farm products, and Hicks used it in the same manner, and for the same purpose. The year it was sold to Hicks the land was surveyed, and a division fence built. Hicks took immediate possession, and cultivated the land, and has continued to cultivate it ever since. The plaintiffs’ testator resided in the town of Hyde Park about twenty-t.wo miles from the mortgaged . property, and had no actual knowledge of the sale of the property to Hicks, or that he was in the occupation thereof. The assignment of the piortgageand release are both conveyances, within the provisions of the recording act. Brewster v. Carnes, 103 N. Y. 562; 4 St. Rep. 264; Baker v. Thomas, 61 Hun, 17; 39 St. Rep. 816; St. John v. Spalding, 1 Thomp. & C. 483. Independent of that statute, the plaintiffs acquired no right to sell the twenty-seven acres conveyed to Hicks. The rights of the parties therefore depend solely upon that statute. By its terms, conveyances not recorded are void against subsequent purchasers in good faith and for a valuable consideration. That plaintiffs are purchasers for a valuable consideration is undisputed. But notice of a prior unrecorded conveyance, or of any title to the premises, or knowledge of facts which would put a prudent man upon inquiry, impeach the good faith of a subsequent purchaser. Hence the pertinent inquiry in this case is, did the plaintiffs’ testator have notice of Hicks’ title, or knowledge of such facts concerning his possession that should have put him upon inquiry in reference thereto? That open and visible possession of property is equivalent to notice of the rights of persons other than those who have title on the record is the rule established by an unbroken line of decisions, and, if the decision of this case depended upon the question whether the character of Hicks’ possession of the land was sufficient to have put the assignee of the mortgage upon inquiry as to his title, I think it would be difficult to sustain the judgment. Hicks went into immediate possession of the land conveyed to him, inclosed it, and cultivated and cropped it in the manner usual with farm property. His acts .in that respect were sufficient to constitute an adverse possession, as that term is defined in section 370 of the Code of Civil Procedure; and I can see no reason why such a possession was not constructive notice of Hicks’ title. He certainly could have made no greater use of the land than he did, and his possession could not have been more open and notorious than it was, unless he had erected buildings on the land, and actually occupied them. Baker v. Thomas, 61 Hun, 1739 St. Rep. 816, is not a controlling authority on this question. In many of its facts it was quite like this case, but there the land was used us a pasture for cattle. . It has been many times decided that using land occasionally for pasturage or cutting of timber was not such an occupancy as would charge a purchaser or incumbrancer with notice, and the report of that case does not state the extent of the use to which the land was put. In the case before us the land was inclosed, cultivated, and improved. No more open and visible use could be made of farm land, and to hold that such an occupation and use was not constructive notice of the rights of the occupant would be to deny the application of that rule to that ■class of property. But the question still remains, was Hicks’ possession notice of a claim adverse to the mortgage? In my judgment, it was not. His title was derived primarily from the mortgagor, and under that title he went into possession. The release was not made to him, and, if it had been, he could not have taken possession under it. His occupation was not inconsistent with the existence of the lien of the mortgage, and there was nothing in the mere fact of his possession to lead a prudent man to believe that he claimed a title adverse to the mortgagee. When a person is a stranger to an apparent or recorded title, the case is different In such a case his possession is an assertion of an adverse right. But when, as in this case, title is derived from a mortgagor, there is nothing in the possession of the land apparent to an observer which is hostile to a prior mortgage. The occupant is supposed to hold subject to the mortgage, and there is nothing to put an assignee of the mortgage on inquiry. Notice of an unrecorded title will be imputed only when it is a reasonable and just inference from visible facts. This proposition was substantially decided in Cook v. Travis, 20 N. Y. 400, and in Fassett v. Smith, 23 N. Y. 252. It was also so decided by Justice Pratt, at special term, in Insurance Co. v. Wilcox, 55 How. Pr. 43, and that case has been ■cited at general term and in the court of appeals with approval. The judgment must be affirmed, with costs.

All concur.  