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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 334 There were three clear mistakes in respect to charging the mortgage for $2,160, now sought to be foreclosed, upon the lands allotted by the judgment in partition to Susan A. and Sarah A. Mather: First, in the report of the *Page 335 commissioners, and in the judgment roll in partition, whereby an inoperative mortgage for $1,690 was expressly charged upon their lands, instead of that for $2,160, which was actually outstanding and unpaid, although on different premises; second, in the proceedings for the appointment of a special guardian, and for the sale of the lands allotted to Sarah A. Mather, in omitting to name the said mortgage for $2,160 specifically, as having been charged in part upon her said lands by the said judgment in partition; third, in the deeds from Susan A. Mather and Lucina Gale to Avery S. Delano, in stating expressly that the lands thereby conveyed were subject to the said mortgage for $1,690, and omitting to state that the lands were subject to that for $2,160. The first two mistakes probably arose from ignorance of all parties interested as to the true state of the facts and the want of proper investigation. I infer that the parties knew nothing of the mortgage for $2,160. They were not aware of the mistake or the real facts in respect to the two mortgages, so far as it appears from the case or the report of the referee, until about the time of the contract for the sale to Delano, in May, 1855. The mistake was then settled among the parties, each agreeing to bear a proportionate share of the excess in amount of the larger mortgage. Delano, as is found by the referee, agreed to assume the mortgage for $2,160, as part of the consideration to be paid by him for the lands purchased of Susan A. and Sarah A. Mather and Lucina Gale. In preparing the deed to Delano, the lesser mortgage for $1,690 was stated as one of the incumbrances which he assumed, instead of that for $2,160. This latter mistake was a palpable blunder, made with full knowledge of the real facts. If the question was to be considered with regard to the rights of Delano as purchaser, the case would be free of any difficulty. The question now is, whether there is any constructive notice arising from the face of the records in the partition suit, or the proceedings to appoint a special guardian and to authorize the sale of the lands of an infant owner, or from the deeds to Delano, *Page 336 whereby the subsequent purchasers and mortgagors of the lands conveyed to them are to be charged with the payment of the mortgage for $2,160 instead of the lands specifically described in the said mortgage. The lands therein mentioned are situated in Orleans county, are a specific lien upon the larger portion of the estate of Gad Murphy allotted to Robert Worrell, the father of Sarah C. Worrell, the plaintiff, and never became a lien of record upon any portion of the lands allotted to the other parties in the partition suit. It was intended and believed, by the commissioners in partition, that the lands allotted to Robert Worrell were free from incumbrance. Equitably, and according to the intention of the commissioners, there is no doubt that this mortgage, as against Susan A. and Sarah A. Mather, is chargeable primarily upon the lands allotted to them. The same equity exists as against Delano, who expressly agreed to assume this mortgage when he became the purchaser of the land in Niagara county. It was due to their negligence that the deed to Delano was not properly framed to charge the land conveyed with the outstanding mortgage in another county, instead of the inoperative one that was only an apparent lien on the 11th of May, 1855, when he agreed to become the purchaser, and which had been satisfied of record on the 8th of June, 1855, three days prior to the date of the deed.
The principle of equity is well established that a purchaser of land is chargeable with notice, by implication, of every fact affecting the title, which would be discovered by an examination of the deeds or other muniment of title of his vendor, and of every fact, as to which the purchaser, with reasonable prudence or diligence, ought to become acquainted. If there is sufficient contained in any deed or record which a prudent purchaser ought to examine, to induce an inquiry in the mind of an intelligent person, he is chargeable with knowledge or notice of the facts so contained. With the most careful scrutiny, we look in vain for anything in the commissioners' report or the judgment in partition, or the proceedings for the sale of the share allotted to the infant *Page 337 daughter of Gad Mather, to cause a suspicion that the mortgage on lands in Orleans county in any manner affected the lands allotted to Lucina Gale and Susan A. and Sarah A. Mather; or indeed that any such mortgage existed anywhere. The Supreme Court recognize the correctness of this statement, and the error into which the referee had fallen in this respect.
It is supposed, however, that the deed to Delano develops matter which ought to put a prudent person on inquiry. The deed from the infant, by her guardian, has no reference to any mortgage, so far as the evidence or the report disclose. The other deed, that from Lucina Gale and Susan A. Mather, refers to a mortgage which had been a specific lien at the date of the agreement to purchase, but was satisfied of record three days prior to the date of the deed. Why should John Cornes or Buel P. Barnes have any reason to suspect that there was another mortgage, or even to doubt that the other mortgage mentioned, that to the loan commissioners, was the only remaining incumbrance that had been created by the owners prior to Delano? They had no occasion to search the records of Orleans county. Nor can we perceive any occasion to make inquiry of the president or other officer of the Lockport Bank and Trust Company. That bank had just satisfied a mortgage which had been a lien specifically on the land in Niagara county. Surely this fact gave rise to no cause of suspicion that the bank had not been paid, or that the bank held another mortgage which was a charge on the land so purchased. They had no cause to inquire even who had paid that mortgage. It might well be presumed that Delano had paid it, as the deed required him to do so, although executed subsequently to the satisfaction of the mortgage. It was a subject of private arrangement between the parties to that deed, with which subsequent purchasers had no concern. It was sufficient for them that a mortgage assumed by the deed in express and definite terms, as well as by an exact and formal description of date, parties, amount and place of record, was satisfied and discharged. *Page 338 To hold the subsequent purchasers in this case to be chargeable with notice of the mortgage on property in Orleans county, would enlarge the rule, before referred to, to an alarming extent, and would render an examination of title no rule of safety in the transfer or acquisition of real estate. The most astute and vigilant lawyer in the examination of a title, would never find a hint of any latent equity or incumbrance from the facts apparent here.
With regard to equities between the plaintiff, Sarah C. Worrell, and her aunts, Susan A. and Sarah A. Mather, in respect to the payment of the sums charged upon the shares allotted to them, as between them and her father Robert Worrell, on the partition of the land, we have nothing to do. They are not parties to either action. Our inquiry here has reference only to adjusting the order of sale of the premises, if the lands in Niagara county had been proven to be, in fact, chargeable.
Nor is the case fully before this court as to the rights and equities existing between the said Sarah C. Worrell, plaintiff, and the Exchange Bank, as owners of the two mortgages for $5,832 each, assigned by Susan A. and the guardian of Sarah A. Mather, and executed by Delano to them, as part of the consideration of the conveyance, to him.
As against the mortgage of Buel P. Barnes to the Exchange Bank, for $12,000, and the title acquired on the sale under the foreclosure of the last mentioned mortgage, the said Sarah C. Worrell appears, on the evidence before this court, to have no equities, for the same reasons that are applicable to the title acquired by Cornes and Barnes. We render no judgment on that branch of the case.
All that portion of the judgment appealed from, which provides for the foreclosure and sale of the mortgaged premises situate in Orleans county, particularly mentioned in the complaint of the Cambridge Valley Bank, plaintiff, and for the costs of that bank in the said two actions tried together, should be affirmed, with the costs of the Cambridge Valley Bank on the appeals to the Supreme Court and to *Page 339 the Court of Appeals, to be paid by the referee out of the proceeds of the mortgaged premises.
The residue of the said judgment, after the description of the premises in Orleans county, mentioned and described in the mortgage sought to be foreclosed in the action of the Cambridge Valley Bank, plaintiff, should be reversed, and a new trial ordered in the action of Sarah C. Worrell, plaintiff, with costs to abide the event.