
    Artilissa V. Gearon, Plaintiff, v. James Kearney et al., Defendants. Pauline W. Squire, Plaintiff, v. James Kearney et al., Defendants.
    (Supreme Court, Kings Special Term,
    January, 1898.)
    . 1. Foreclosure — Equities as between assignees — Bona fide purchasers.
    Where the legal owner of premises, subject to two mortgages, authorizes an attorney to raise money for their payment and the owner thereafter gives a lender, for that purpose, a purchase-money mort- ■ gage and the attorney pays the existing mortgages, but, instead of having them satisfied, takes assignments of them to himself which he temporarily withholds from record, his bona fide assignees for - value and without notice, other than such as might be derived from the fact that 'the consideration named in the assignments to him was one dollar, are to be protected in equity against purchasers from him of the purchase-money mortgage, which, upon its payment by him, he had procured to be assigned to himself; and this although he had assured such purchasers that the purchase-money mortgage was a first lien and although the records, at the time of the purchase, did not show the fact to be otherwise.
    8. Same — Fraud of agent of legal owner.
    It is to be considered, upon such a state of facts, that the legal owner of the property has, by his acts, enabled the attorney to gain the possession and apparent ownership of the first mortgages, and hence bona fide purchasers of them from him are • to be protected, even though his purpose in procuring the assignments to be made to himself was fraudulent. •
    3. Same—Latent equities subsequently created —Estoppel.
    The representations of the attorney, made to the purchasers of' the purchase-money mortgage and stating that it was:a first lien do not estop his bona fide assignees, as bona fide purchasers of a valid security cannot be charged with latent equities which have been ' created - after the inception of the instrument.
    4. Sainé — Bona fide purchasers — ÜTotice.
    Assignees of mortgages are not put upon inquiry by a nominal consideration expressed in prior assignments of the mortgages, where inquiry would not have disclosed an alleged priority.
    Action of foreclosure.
    M. Gearon (J. A. McCreery, of counsel), for plaintiff Gearon.
    Rush Taggart, for plaintiff Squire.
    Miller, Decker & Miller (Jacob F. Miller, of counsel), for defendants Maria S. Dunkin and Ella V. Greene.
   Hirschberg, J.

Convenience will be subserved by the disr position of these cases together. Each is brought to foreclose a mortgage upon the same premises and in each a defense is in-' terposed by the defendants Dunkin and Greene asserting the prior equity of the same subsequently recorded mortgage. The real estate affécted by the three mortgages in question was conveyed .to the defendant James Kearney on the 15th of September, 1891, subject to two of the mortgages,. viz.: One for $1,800, given to George H. Roberts, January 9, 1884, an,d one for $1¿20Ó, given, to Jane J. Davenport,. April 24, 1889. At the time of1 the conveyance to Kearney, these mortgagees were still the owners of the mórtgages respectively. The conveyance to Kearney was without consideration, and was effected through an intermediary from the real owner, McCann, and for reasons not disclosed. The papers.were drawn by" an attorney, William"H. Nafis, and at the time of the transaction it was understood that he would secure a new loan on the property of $3,000, and with the proceeds would take up the two mortgages above mentioned. Such a loan was procured by him at that time from one Maria N. Anderson, and a purchase-money mortgage for $3,000 was executed September 15, 1891, by Kearney to her. The money was paid by Mrs. Anderson to Rafis, and on the 3rd of October following Rafis paid to Roberts the amount of his mortgage, viz.: $1,800, and took from him an assignment of it to Mrs. Anderson, expressing the consideration of one dollar. This assignment was recorded Rovember 13, 1891. Mrs. Anderson knew nothing of the assignment to her of the Roberts mortgage. She in common with the other parties trusted Rafis implicitly, and he was accordingly-enabled to manipulate the securities as he pleased.

On April 12, 1893, Rafis paid Mrs. Anderson the full amount of her mortgage, and took from her an assignment to himself, both of the Roberts $1,800 mortgage and her own $3,000 mortgage. The assignment of the Roberts mortgage was for the expressed consideration of one dollar, and she says she signed' it because Rafis asked her to do so, and without any understanding or knowledge of what it was. On the 20th of April, 1893, Rafis sold and assigned to the defendants Maria S. Dunkin and Ella Y. Greene the $3,000 mortgage for its full face value, assuring them that it was a first lien on the property. ' The assignments of. this mortgage to Rafis and to said defendants were recorded the next day.

On January 12, 1894, Rafis paid to Mrs. Davenport the full amount of .her mortgage, $1,200, and took from her an assignment of it to himself dated that day, and expressing a consideration of one dollar. At that time, therefore, Rafis held unrecorded assignments of both the mortgages which were prior of record to that held by the defendants Dunkin and Greene.

On July 3, 1895, Rafis sold the Roberts mortgage to the plaintiff Pauline W. Squire for $1,800, and transferred it by an assignment to her dated that day, and which assignment, together -with the assignment of that mortgage to Rafis, was recorded July 16, 1895.

On September 25, 1895, Rafis sold the Davenport mortgage to the plaintiff Artlissa Y. Gearon as a $1,000 mortgage, and for that sum. Her husband and attorney, before consummating the purchase, searched the records, and also required and received from Kearney a verified certificate to the effect that the mortgage was a valid and subsisting lien as a second mortgage upon the premises, and that there was no legal or equitable defense to it. Rafis died in the month of October, 1896. On December 22, 18,96, the assignments to him and to Mrs. Gearon of the Davenport mortgage were recorded.

The defendants insist that both the prior mortgages were paid in fact by Rafis, and that they were, therefore, dead at the time they were transferred to the plaintiffs respectively; and that if they be considered as then legally revived by Rafis, neither could be negotiated to the injury of the holders of the third mortgage. This contention is based on the assumption that the money used by Rafis in paying Roberts and Mrs. Davenport was money be-' longing to Kearney, and that the intention of the parties was that these prior mortgages should be paid off and canceled. Assuming that the money used was Kearney’s, I think a purchaser' in good faith for value.would be protected in dealing with Rafis as the owner. The intention is to be gathered from the acts of the parties. It was certainly the act of the legal owner of the property which enabled Rafis to procure the possession of the mortgages and to invest himself with the indicia of ownership, and as between himself and a purchaser for value he would be estopped from disputing the validity of the title acquired by Rafis. As has been seen, he did not hesitate to certify under oath that one of the mortgages was a valid incumbrance, and subject to the other one, four years after the money was borrowed which it is claimed was used in paying them off. But even assuming that the intention was to pay off and discharge the prior mortgages, then the act of Rafis in procuring an assignment to himself was fraudulent, but that fact would not prevent him from giving a good title to a bona fide purchaser for value. As was said in Simpson v. Del Hoyo, 94 N. Y. 194, “ It is a familiar rule of law that a fraudulent purchaser of real and personal property obtains the legal title to the property purchased, and that he may convey a good title to any bona fide purchaser from him for value.” In that cas.e, it was accordingly held that the holder of a bond and mortgage concededly worthless and uncollectible in his hands could transfer it, and the purchaser for value without knowledge or notice of the defect could collect the security by foreclosure. See, also, the recent case of Wallach v. Schulze, 22 App. Div. 57, where it was held that a purchaser of a bond and mortgage from one who has procured an assignment by using the money of the mortgagor for that purpose has a superior equity to that of a' judgment creditor whose lien precedes the sale. The court said, page 62, “ There are cases, and without them there would be reason and equity, in favor of an attack by a creditor, if directly made against a mortgagor, or the person to whom a mortgage had been assigned, such assignment having been procured with the money of the mortgagor; but that would be upon the theory, not that the person taking the assignment obtained an invalid title, but that the title which, upon the record, was legal and valid, was open to attack and voidable as against creditors. The title which Zimmerman obtained to the bond and mortgage by the assignment cannot be regarded as void. The most that can be asserted^ of it is that it was voidable or assailable at the instance of creditors. Having a good title, therefore, Zimmerman, before such attack was made, assigned it to the plaintiff. As evidence of the plaintiff’s good faith, he not only obtained the certificates from both Mrs. Juch and Zimmerman that the mortgage was a valid subsisting lien upon the premises; that there were no- defenses, and that the full amount called for in the mortgage was unpaid, hut he also obtained possession of the bond and mortgage, which was enforced by a complete record title in Zimmerman at the time of purchase. The equities of such a purchaser as the plaintiff, we think, are superior to those of a creditor who takes no action until a period subsequent to the purchase; and the right of such creditor to attack the title to the bond and mortgage while in Zimmerman’s hands is not available against one who purchased as did the plaintiff.”'

The defendants, however, further contend that they have a direct equity as against the plaintiffs’ mortgages, inasmuch as Hafis assured them when' they invested that their mortgage was a first lien; that he was thereby estopped from asserting the two prior mortgages as prior liens, even if his title to them were unassailable; that his assignees could take no better title than he could convey; and that accordingly the plaintiffs acquired their mortgages' subject to this equity of the defendants. It must be conceded that it is the settled law of this state that the bona fide purchaser for value of a nonnegotiable chose in' action, such as a mortgage, takes it after maturity subject to all the equities patent or latent existing either against the mortgagor or in favor of third persons, hut it is by no means settled that such equities are other than those which' exist at the time, and are in some manner connected with the chose in action itself, when it was first endowed-with legal life. I have found no satisfactory case in which the principle was applicable to the facts where the court "has decided that' the equities with which an "innocent assignee was chargeable could be incidentally created in-the course of remote transmission of the security, still less that they could arise with respect to a subsequent incumbrance and the facts attendant upon its remote sale and transfer. When it is recalled that such choses in action were not- assignable at common law, and that even after the .rights of assignees were .recognized, by courts of equity the action-was always in the name of the assignor, that is, the-mortgagee, the significance of the test that the assignee could do. only what the. mortgagee could do will be appreciated. If the doctrine above referred to, and peculiar to this state, is to be now .extended só as’ to charge purchasers. of mortgage securities with the latent equities of subsequent incumbrancers, such equities having been created ' after the inception- of the prior incumbrance, the extension should .rest upon the clearest, and most certain judicial authority.

The leading case relied, upon, by the defendants is of course Bush v. Lathrop, 22 N. Y. 545, but while the general principles, asserted, in that case have been frequently indorsed, they were notoriously inapplicable to the facts before the’ court, which called for- a decision on the doctrine of estoppel and not because of the assignee’s .subjection to latent equities:' .

In Schafer v. Reilly, 50 N. Y. 61, the .mortgage was given-originally without consideration, and before^ it was. negotiated for value, a new lien had been created upon the property. It was held -that., the purchaser was bound by the equity existing at the inception-of the mortgage, arid arising from the original failure of consideration. In other words, -when he bought the mortgage it first.became one. ■ , • . •

■■ In Trustees of Union College.v. Wheeler, 61 N. Y. 88, the question related to the rights of a person having a contract interest in the- equity of redemption prior to the making of the mortgage, and it was- held-that an assignee of the-bond and mortgage in-good faith and without notice acquired only a lien subordinate to the rights.’ of the purchaser. “ It is well settled,” said .Dwight,, 0., page 104,. that an assignee of a mortgage must take it subject to .the equities attending the original transaction. ■ If- the mortgagee cannot himself enforce it, the- assignee, has:- no .greater rights. The true test is -to inquire what can the mortgagee do by way-of enforcement of .'it against the property, mortgaged; what he can do,. the assignee can- do and no more.”- .And on. the motion for réargument,, he said,, page 1.14, “ It must accordingly beheld to be still the law of this, state, that the purchaser of a', noii-: negotiable chose in action, secured by a mortgage, takes it subject to the latent equities not pnly of the mortgagor, but of third persons.” The expression “ third persons ” must be qualified, as was done in discussing another principle at page 122, by not "extending it to “ third persons in the correct sense of that expression; that is, to persons whose rights are external to the mortgage,” .and thereby limiting the rule as laid down .on page 114,. viz..: “ that the chose in action itself is open to all defenses growing, out of the original transaction, in the hands of any assignee no matter, how remote.”

In Greene v. Warnick, 64 N. Y. 220, the equity related to an agreement made at the time of the execution of two mortgages that neither should have priority over the other, and it was held that the assignee of the one first recorded obtained no preference.-

In Crane v. Turner, 67 N. Y. 437, the equity existed at the creation of the mortgage, and Miller J., speaking for the unanimous court, said, page 439, “ The principle is settled beyond peradventure that an assignee of a mortgage must take it subject to the equities attending the original transaction. If the mortgagee himself cannot enforce it, then the assignee has no greater rights. The- true test is to inquire what can the mortgagee do by way of enforcement of it against the property mortgaged, and what he can do the assignee can do and no more.”

In Viele v. Judson, 82 N. Y. 32, the question related to the effect of an unwarranted and fraudulent discharge of a mortgage, and it was held not to create a priority in a mortgage subsequently recorded.

In Owen v. Evans, 134 N. Y. 514, the rule is indeed declared to be much broader than these authorities justify, and is stated by Vann, J., as follows, page 519: “According to the rule, well settled, in this state, however it may be elsewhere, the plaintiff, as assignee of the note and mortgage, when both were past due, took those securities subject to all the equities which third persons could enforce against his assignor. Our courts recognize no distinction between equities existing in favor of the mortgagor and those existing in favor of a third person, but hold that, in the absence "of an estoppel, an assignee-of a mortgage takes only the interest of his assignor, and subject to any latent equity in favor of any person. Bush v. Lathrop, 22 N. Y. 535; Schafer v. Reilly, 50 id. 61; Trustees Union College v. Wheeler, 61 id. 88; Greene v. Warnick, 64 id. 220.”

It is to, be noted, however, that the only question before the court was the determination of the true ownership of the same securities as between rival claimants, and the principle involved in the decision was that the owner, having once sold the securities, could not sell them a second time. It was not that the second assignee took subject to certain-equities, but that he took nothing.

In Bank for Savings v. Frank, 56 How. Pr. 403, the precise question arose. There' an agreement in writing was made and recorded by which the holder of a mortgage agreed to waive its., priority over another, and it was held that an assignee without notice was not bound by the agreement. The case differed from Greene v. Warnick, supra, in that tie agreement was made- after the mortgages were negotiated. The court said, referring to the general rule that an assignee of a mortgage takes it subject to the equities (page 408): “ But this, general rule does not extend to equities other than such as attend the original transaction. They must exist at the-time of the inception of the mortgage, at the time it springs into life. In all such cases the assignee takes subject to them, and he cannot defeat them simply by showing that he is a bona fide purchaser for a-valuable consideration. In all such cases it is immaterial that he had no notice of their existence at the time of assignment* But where a mortgage ’had a valid inception as a subsisting and enforcible lien in the hands of' the mortgagee to the full extent' of its face,, equities .arising thereafter stand upon a different footing, and they are to be disposed of lipón such other'principles of public-policy, or according to such statutory requirements, as the facts of -the particular case may call for.'” '

My conclusion, therefore, 'is that the plaintiffs, if bona fide purchasers, did not take subject to the defendants’ equity arising from what Hafis said to the latter at the time - of the salé óf the $3,000 mortgage. If the action were ¿gainst Hafis, the doctrine-of estoppel' would' apply¡ " If Kearney,, the' ownérj had done with these mortgages just what Hafis did, that doctrine might be suct cessfuliy invoked. But wheré the record' owner óf a first' and second mortgage parts' with the first, mortgage to a bona fide purchaser for válue, the title ofl'such purchaser is not affected by the fact 'that the assignor had previously''sold the '.second mortgage' accompanied" by a representation that'it- was ¿ first lien.

■Theré remains to be considéred the question of good faith. The defendants insist that the considération of one dollar only-in the-

\ assignment to Máfis is a circumstance tending to put the plaintiffs on inquiry and that they are chargeable with the consequences of a failure to inquire. Assuming this to be so, it is difficult to see how inquiry would have disclosed the existence of the. defendants’ claim to priority. The only -suspicious circumstance being the nominal consideration, suspicion would have been instantly allayed in Mrs. G-earon’s case by inquiry. Mrs. Davenport or her representative would have told her that although the assignment to Mails was expressed as for one, dollar,- yet Mails in fact paid her the full amount of the bond and mortgage. In Mrs. Squire’s case, the answer is not so satisfactory. Inquiry of Mrs. Anderson would have presumably -disclosed the existence of the defendants’ mortgage, and the fact that Mrs. Anderson had no knowledge of the transmission of the first mortgage through her. But further inquiry of Mr. Boberts would have shown that Mails at the time "of the assignment to Mrs. Anderson paid the full amount of that bond and mortgage. The existence of a third mortgage is not of itself a fact which wonld deter an' individual from purchasing a first one, and it would be the merest speculation to say that the investigation would naturally or necessarily have acquainted Mrs. Squire with the claim of priority herein asserted by the defendants.

These cases cannot be decided without probably entailing a serious loss on one or more of the parties. . To visit this loss upon the plaintiffs would be in a large degree destructive of certainty in dealing with mortgages. A result which enforces the mortgages in the order of their record seems under the circumstances the most equitable disposition of the cases, and judgments are accordingly so ordered; but without costs.

Judgments accordingly, without costs.  