The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-18
Supreme Court-(seneral Term.
Before Hon. Judges Mitchell, (P. ~ Roosevelt, and

RECORDING ASSIGNMENTS OF MORTGAGES.
- Nov n:-Sylrester J. Kellogg u.s. VIM. r. Buckley
opinion Of his Honor Judge Roosevelt given The majority
OF the court ordered that the report Of the referee
yersed and new trial granted No opinion rendered
in favor of this decision Judge Roosevelt ssented from
this conclusion, and delivered the following opinion liz
support of his dissent
The question raised by this relates the effect of
an omission to record first assignment of bond and
mortgage as against second bona ade purchaserof the
not merely assigned, but usual in such transac-
TONS actually delivered to the Hrst purchaser The
second purchaser however the time OF his purchase
that they were merely locked up in safe
the key OF which could not be Immediately procured
and the records ON examination, negatively showed if
by law they ever show such negative, that pre-
v.ous assignment had been made Which, then, under
these circumstances, OF two innocent persons, both
alike deceived by third is to be the loser-the first
purchaser, who relied tho possession of the secu-
titles and the implied engagement of the mortgage
the second purchaser who overlooked the
ossessions and relied on tho express assurance
OF the mortgage that he had not already made q
ror assignments The question is one Of great practical
Importance many persons 1t is believed, who take
transfers of subssting mortgage securities, wholly omit
unless foreclosure becomes necessary to their
assignments dceming the record Of the mortgages them
selves and the possession Of the originals SUFFICIENT pro-
o s
mortgages" these are the words Of Its TITLE l. r. 81
ana Of real estate to S
20 recorded shall be void against purchas.
ers in good faith and for valuable consideration Of the
ance shall be arst duly recorded Now bond sthoush
accompanied by the collateral security Of land It is well
settled PERSONAL and not real estate 1t with
the mortgage the death Of the owner bis admins
traitor and not to his heir conveyance therefore, Of
bond and mortgase-in other words sssignmsnt-is
not "a conveyance Of real and consequence,
unless otherwise made is not subject the recording
act ~ subsequent however (secs a, - is-ds-
shall be construed to embrace every instrument II
writing BY which any estate interest in real estate u
title to any real may be affected in law or equity
except last wills and testaments leases term not
a three years and sss;utsr contracts for the
mitted, is very comprehensive would seen on arst
impression to require the recording Of every
The question nevertheless st recurs-s an sssennsnt
tsrest in real estaes It be 60 Il can only be made BY
writing And yet the courts have hsld and II has bee
the Settled law for years that bond and MORTGAGE may
securities. IN Johns, 1884, 10 do, s25) II then wri-
ting be not necessary, how can recording be
ther how Is recording practicable where there is
ting to recurds Besides IT is conceded-or II con-
cedsd it is ndisputable-thatt the assignment 30 far at
ting otherwise, need not be recorded-the arst
assignee holds that against all the world. He
hs may receive
gage merely collateral to The bond Practicay there
nature Of the instruments can take nothing He knows
that ought to know it. when he deals with assigned
l-un00rHtOOd objections
to that species of security. He may partially guard
himself by taking written admission Of The mortgagor
that the debt remains due and that there Ia defence
Offset But when he finds that the MORTGAGE is not
in possession of the securities there Is the supcadded
difficulty, and the purchaser is bound to know it, that
they have been previously assigned by delivery
1he very production of the instruments abundant
evidence that they be- and indeed ordinarily speak
ing must be in possession Of some other person. and
that other person. notwithstanding the absence Of any
record OF an assignment may be the lawful owner Il
then the purchaser under such circumstances take
lo t1no
he has made previous sslcS Or II he do thus disre
gardng the natural dictates Of prudence should he not
be compelled to abide by his folly IL tho turns
out be faseg What quty has he in such case against
the first purchaser invested with both the possession
and the legal titles Law aids the vigilant not the
siothfui. Hence, where party took . mortgage ON
house from apparent having the record title,
without inquiry the promises he was held not to b
bona 6de mortgage to enttle him to relief against
the true in possession OF the property although
the title of such not record Theirs seems
&c an era es. s n snS
the time and for the amount, the owner OF
the mortgage OF what value y that oTnersn,p wn,c
mere yoon, at any time and at All times, to de-
stroy For presume i win hardly be disputed that
which VIII S Is merely cohsisrs g it. tender even, has
then can the adiudge the mortgage in such case
10 belong to the second purchaser Would 1t not be
much the same As holding that may Be the owner oi
Such ownership ia contradiction in terms; sIo de
In James Va Morey Cowan, 24e, II decided BY
the late Court of Errors that although Assignment ot
mortgage may be recorded, yet, merely 70 protect
the purchaser from second sale as matter OF strict
right, ii need not be. "Where the mortgAQeeo says
Mr.. Justice Woodwork, "makes q second assign
ment the assignee knows that q prior Assignment
may have been made, and consequently must, as
to that fact, repose on the responsibility and
integrity Of his assgnor If he should be de-
ceiyed, It Is equitable that he should suffer,
thsn to divest the right of the first assignee, who had
acquired the legal estate This decision of the ata
Court Of Errors made IL Is said the constructors
of the former and OF the existing recording act The
grounds however which placed, II will be seen,
ar Suuay annli 10 N bofb. Z corrock