The proposition is fundamental that one who purchases a mortgage takes his title subject to any equities which may exist against his assignor in favor of the mortgagor. The "Recording Act* is an invasion of this general rule. One who invokes this act, therefore, for the purpose of limiting the scope of the rule must be certain to bring himself within the provisions of the statute.
A “ conveyance ” must be recorded to afford protection against a subsequent purchaser in good faith and for a valuable consideration. The term “ conveyance ” is defined in the statute † as follows: “ The term 'conveyance’ includes 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.”
No estate in real property is “created, transferred, mortgaged or *168assigned ” by an agreement to defer the time of payment of a mortgage nor does it affect the title of real property. The effect is only to postpone payment. The courts have held an assignment of a mortgage within the operation of the act because it is specifically included in the definition of a conveyance. It is an adequate answer to the suggestion that injustice may follow the decision that the agreement under consideration is effective against the plaintiff to-bear in mind that notwithstanding the numberless similar transactions which doubtless have occurred the diligence of counsel or of the members of this court has been unable to find any authority that an agreement of this kind is within the Recording Act. If the mortgage though not due had been largely reduced by payments an inspection of the record would not disclose the fact and yet the payments would be effective. If one is in possession of real property under a lease not recorded or by virtue of an unrecorded contract of purchase his interest is not eliminated by a sale of the premises. The purchaser of a mortgage must ascertain the situation between the parties to the instrument and if he fail in that he buys at his peril.
I think the judgment should be affirmed.
Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and of fact.
1 B. S. 756, § 1, revised by Beal Prop. Law (Laws of 1896, chap. 547), § 241. — [Bep.
Section 240 of the Beal Property Law.— [Bep.