Pettus v. McGowan , 44 N.Y. Sup. Ct. 409 ( 1885 )

BaeNArd, P. J".:

This case seems a plain one. One Phraner had given a mortgage for $2,000 to John F. Barnard in 1870’. The mortgagee Barnard' assigned the mortgage to the Guardian Savings Bank in the same year, and early in 1871 the bank put the assignment on record. "Within a short time after the assignment was recorded, the plaintiff agreed to buy the property free and clear, except a $6,000 mortgage held by the Brooklyn Life Insurance Company, also given by Phraner. The plaintiff knew nothing of the assignment, and when she took her deed in 1871, she paid Phraner all over the $6,000, and Phraner then and there paid Barnard the $2,000 and took a satisfaction of the mortgage from him. The plaintiff never knew of the assignment or of its record until about a year since, when she agreed to sell the property and her purchasers refused the title. The statute in respect to the recording of assignments provides that “ the recording of an assignment of a mortgage shall not be deemed in itself notice of such an assignment to a mortgagor, his beirs or personal representatives, so as to invalidate a payment made by them, or either of them, to the mortgagee.”

The payment falls within 3 Revised Statutes (Banks’ 7th ed.), 2222. Phraner made the payment to Barnard in plaintiff’s presence, and in the absence of other proof of knowledge of the assignment, other than the recording of the assignment, he made a good payment. (Van Keuren v. Corkins, 66 N. Y. 77) The statute is not so limited in its operation as to exclude the plaintiff from the protection designed to be afforded. "Whenever a landowner is subject to a mortgage, when he executes it or it was executed by another person, and he being subject to it, whether the mortgage is held by the morgagee or by an assignee of the mortgagee, notice of the change of title to the mortgage must be brought home to him by means other than the mere recording of an assignment, so as to invalidate a payment. He may treat his creditors as such until notice of a change, otherwise no payment of either principal or interest would ever be safe in very many cases without a full search of the record for assignments. There are reasons presented by the evidence tending to show that the mortgage was actually-paid. Phraner and Barnard are both dead. The Guardian Company has failed. The bond and mortgage was not found among its assets. A list produced by plaintiff of the assets contains a mark paid opposite this bond and mortgage. Barnard actually had the bond and mortgage in 1871 at the time of the payment, and it has not been heard from since until the defendant claims from the record solely.

The judgment should be affirmed, with costs.

DykmáN, J., concurred; Pbatt, J., not sitting.

Judgment affirmed, with costs.