(dissenting): The defendants appeal from á judgment of foreclosure and sale which was entered in favor of the plaintiff after a trial of the action at Special Term. On the trial the following facts were established: 'The plaintiff is the assignee of an instrument executed by Harriette S. D. Bomeyn in favor of the firm of Mathews, Grange & Co., in and by which instrument it is declared that she was indebted to Mathews, Grange & Co. in the sum of $2,000, and that she held and bound herself to pay that firm such sum of money. The instrument is in the form of a bond, but it also contains a statement that the obligor .is the owner in fee of certain real estate in the city of Hew York and that foreclosure actions were pending affecting such property, and she stipulates and agrees that “ as additional security for the obligation above mentioned, she hereby assigns and'sets over to the said Mathews, Grange & Company, out of the residue or from any and all sum or sums remaining due to her from said foreclosure proceedings, an amount equal to the amoiint due said Mathews, Grange & Company, and the referee or any other party holding said sum is hereby authorized to pay said amount to said Mathews, Grange & Company, their executors, administrators or assigns upon demand. In the event that said foreclosure proceedings should for any reason be set aside, or discontinued, then it is further agreed by the said Harriette S. D. Boméyn, that upon demand, she will exe*316cute a proper bond and mortgage, to secure the said Mathews, Grange & Company, the payment, within six (6) months of such amount as shall to that date be due them.”
The foreclosure suits mentioned in the instrument were discontinued. Mathews, Grange & Co. were not paid thé indebtedness due them. The owner of the premises conveyed them to George. W. Bowers, who mortgaged them to the Loan Commissioners of the United States for the State of Hew York, who conveyed, them to Ludo vie A- Damainville, the defendant, who (when he took title) executed an instrument, in which he declared that he took the land subject to whatever rights the plaintiff might have therein. Subsequently, Damainville executed mortgages to the defendant Decker and finally conveyed the property to her., The identical instrument which lies at the foundation of this action lias been declared to be an equitable mortgage. (People ex rel. Mathews v. Woodruff, 75 App. Div. 90.) It was,there held that it constituted a valid lien superior to claims, subsequently ai’ising, of parties having notice thereof. It appears by the evidence that every grantee of the premises, unless Mrs. Decker is to be excepted, had actual notice of the existence of this equitable mortgage. Actual personal notice to Mrs. Decker is not proven, but it is, shown that before she took.fitle to the piremises her. attorney at law knew of the existence of the equitable mortgage." Hotice to the attorney may be considered as notice to the client; but it is unnecessary to'rest the decision of the case on that proposition. ' The instrument was put on record and it thus became notice to all persons dealing with the property described therein. It was an instrument that might be recorded under the Recording Act.
" Section 241 of the Real Property Law provides that a conveyance of real property within the State, acknowledged or proved in a certain manner, may be recorded in the office of the clerk of the county where the property is situated. Section 240 of the" same act defines a conveyance as being" every written instrument by which any estate or interest in real property is created,' transferred, mortgaged or assigned or by which the title to any real property may be affected. The equitable mortgage certainly affect's real property and it has been held that the recording of an equitable mortgage is notice to any one who subsequently takes the property. (Parkist v. Alexander, 1 Johns. Ch. 394; Hunt v. Johnson, 19 N. Y. 279; Todd *317v. Eighmie, 4 App. Div. 9; Thomas Mort. [2d ed.] § 50; Watkins v. Vrooman, 51 Hun, 175.)
The plaintiff’s equitable lien being prior in time to the interests in the land acquired by the defendants and they having actual or constructive notice of the existence of the equitable mortgage, the judgment of the court below was correct, and should be. affirmed, with costs.
Laug-hlin, J., concurred.
Judgment reversed, new trial ordered, cost to appellant to abide event.