[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 456 From the matters alleged in the pleadings, an appellate court would expect that the issue tried would have been, whether the five-acre piece of the lands had been released from or was still subject to, the lien of the mortgage *Page 458 and that the findings of the trial court would have indicated a decision of that question. But it will be observed upon reference to the findings in this case, that the trial court did not decide the issue made by the pleadings, but decided quite another and different issue, and that is, that the five-acre piece was not and never was subject to the lien of the mortgage. While parties have the right to try the issues made by the pleadings, yet they are not bound to, but may try any other issue by mutual consent. The pleadings in such cases serve to show what was once in the minds of the pleaders and what the parties had the right to try, if so disposed, and perhaps the further purpose of constituting a part of the judgment-roll, as the Code of Practice requires that the judgment-roll should contain the pleadings. The court, in reviewing such cases, is only called upon to determine whether the parties have consented to try the substituted issues and whether the decisions of the court upon the new issue are according to law.
In the absence of amended pleading or of stipulation, the court of review must infer the consent to try issues from the evidence offered upon the one side and the absence of objections or the character of the objections, if any are made, upon the other side. (Marston v. Gould, 69 N.Y. 220; Platner v. Platner,78 N.Y. 95; Walsh v. Wash. Ins. Co., 32 N.Y. 440-443.)
Upon the trial of this case, the plaintiff proved the substantial allegations of the complaint, by the introduction of the mortgage, the several assignments and the dates of recording the same. Such proofs showed that the five-acre piece was subject to the lien of the mortgage. The defendant Clement Sweet then introduced the deed of the five acres to himself by Franklin Sweet, the mortgagor, and the release thereof by Franklin Creed, the mortgagee, and that these several instruments were the results of a common negotiation between the parties to the instruments, which when enlarged and expressed in their constituent elements signify that on the 1st day of May, 1873, Francis Creed, Franklin Sweet and *Page 459 Clement Sweet met together and entered into a tri-partite negotiation, the said Creed to sell his land, and the said Sweets each to buy a portion of it. At the same time and place Franklin Sweet gave a mortgage back to said Creed, purporting to impose the lien of said mortgage upon said five acres; that said five acres were at the same time and place conveyed to Clement Sweet by Franklin Sweet, and at the same time and place said Francis Creed released said five acres from any lien under said mortgage, and that at the same time and place the defendant Clement Sweet, paid $150, the price of the five-acre lot, which went to make up the $500 received by Francis Creed, and that sum with the $2,000 secured to be paid by the mortgage, made up the price of the entire piece of land.
All this evidence was received without objection except that the evidence of the delivery of the release was objected to as immaterial and that the release was not then attested and acknowledged. This objection to the delivery of the release was doubtless properly overruled. These facts were proved without objection.
The next step in the trial was this question by defendant: "Q. Were not the execution and delivery of the deed from Francis Creed to Franklin Sweet and of the bond and mortgage from Franklin Sweet to Francis Creed; the payment of your $150 to Franklin, and his $350 with yours, making $500, to Francis Creed; the execution and delivery of the deed of the five acres to you, and the execution and delivery of the release thereof to you, simultaneous acts made at the same time and place, and one and the same transaction?"
This was objected to as calling for a conclusion of fact, and improper, and the objection was overruled and defendant excepted. Thus it will be seen that all this evidence, when given in detail, was not objected to, and when it was afterward sought to embrace all this evidence in one question, that question was not objected to as calling for impertinent or irrelevant evidence, or evidence not within the issue, but simply as calling for a conclusion of fact, and improper. It *Page 460 seems to me to be a very plain case where the parties have ignored the issue made by the pleadings, and by mutual consent tried another. (See authorities before cited.)
Nor do I perceive that any error was committed by overruling the objections and allowing the witness to answer the general questions referred to above. The witness had already testified to every fact contained in the general question, and without objection. Adding to the end of the general question embracing the entire series of acts, if they constituted "one and the same transaction," it seems to me was unobjectionable and could work no harm. (Sweet v. Tuttle, 14 N.Y. 465-472; Knapp v.Smith, 27 id. 277-282.) Every one of the matters constituting the series had been before proven to have been done at the same time and place without objection. Whether they constituted one and the same transaction was much more a conclusion of law than of fact, and were all before the trial court when this general question was asked, and could not in the least degree have affected the decision that was subsequently made by the court.
Upon the matters thus proven practically without objection, the trial court found as a conclusion of fact that, "First. That on the 1st day of May, 1873, the defendant Franklin Sweet made, executed and delivered to one Francis Creed his bond and mortgage as alleged in the complaint, and purporting to cover the premises described in the complaint in this action, but not intended to cover the five acres sold to Clement Sweet by Franklin Sweet, and bounded generally as follows: North by Henry Wilbur, east by Franklin Sweet, south by the highway, and west by Otis Moore, which mortgage was duly recorded in the Dutchess county clerk's office on the 7th day of May, 1873, in Liber 144 of Mortgages, at page 447, etc. This piece was never included in the plaintiff's mortgage, but was sold free from it before it was executed."
And, as a conclusion of law, "First. That the five acres of land claimed by the defendant Clement Sweet in this action, and included in the description in said mortgage, is free from said foreclosure." "Second. That the whole of the premises *Page 461 described in the mortgage, except the five acres sold to Clement Sweet, be adjudged to be sold according to the rules and practice of this court in foreclosure cases."
These results are claimed to have been produced, notwithstanding the five acres are embraced within the description contained in both the deed and the mortgage mentioned, from the fact found that at the time of the execution of the mortgage Franklin Sweet, the mortgagor, did not own the five-acre lot, but the same was owned by the defendant Clement Sweet, who had purchased the same in legal effect from the owner thereof, Francis Creed, and paid him therefor, and that the deed from him to Franklin Sweet did not convey the five acres to the latter, but to him as conduit to Clement Sweet, and that the deed from Franklin to Clement Sweet was but the mode of accomplishing a sale of the five-acre lot by Francis Creed to defendant Clement Sweet. I think the evidence received upon the trial would warrant the inference of fact drawn by the trial court, and, hence, this court cannot interfere with the inference drawn, and it follows as a matter of law that the five acres in dispute was never subject to the lien of the mortgage, aud that the same and the rights of the parties in respect to the mortgage are in nowise affected by the recording acts, for if the mortgage was not a lien upon the five acres, of course the recording acts could not operate to create a lien or a right where none existed before.
Treating, as we must for the purpose of this review, the deeds, mortgage and release as simultaneously made and delivered and as constitutent parts of the same transaction, the five acres conveyed to Clement Sweet were not in reality as between the parties embraced within the mortgage to Creed. And the fact that the deed of the five acres contained a covenant of warranty of quiet enjoyment gave to the grantor an interest to protect by way of defense against the mortgage so far as related to the land so conveyed by her deed. And such defense was available both to him and his grantee against Creed, the mortgagee.
The several assignees, including the plaintiff, must be deemed *Page 462 to have taken the assignment of the mortgage subject to this right of defense. And the rule is too well settled to require amplification of the reasons upon which such rule is founded, that an assignee of a mortgage takes it subject to the equities between the original parties to it. The assignee steps into the place, in that respect, of the mortgagee. (Bush v. Lathrop,22 N.Y. 535; Davis v. Bechstein, 69 id. 440; Bennett v.Bates, 94 id. 354.) And in the view taken, the recording act has no application to protect the assignee against the defense founded upon such equity. (Schafer v. Reilly, 50 N.Y. 61.)
Although the deed to Clement Sweet was not recorded until long after it was made, the notice which possession would afford of his rights was furnished by the fact that he went into actual possession of and occupied the five acres from the time he took the conveyance.
The judgment should be affirmed.