(dissenting.) The main question in the case is whether the occupancy of Jesse L. Wood was of such a character as to be constructive no*81tice of his rights under his mortgage. In Brown v. Volkening, 64 N. Y. 82, the doctrine is laid down that the possession which is sufficient to put a person upon inquiry, and which will be equivalent to actual notice of rights or equities in persons other than those who have a title upon record, “must be actual, open, and visible. It must not be equivocal, occasional, or for a special or temporary purpose; neither must it be consistent with the title of the apparent owner by the record. ” This rule was approved in Pope v. Allen, 90 N. Y. 298. In that ease the plaintiff claimed title under a deed from N. B. Pope, who derived title under a deed from one Rogers which was on record when plaintiff bought. The defendant claimed that he was the equitable owner; that N. B. Pope, in making the purchase from Rogers, was his agent, and wrongfully took title in his own name, and without the defendant’s knowledge or consent, and that defendant paid the purchase money; that defendant erected a dw'elling-house on the premises at his own expense, and occupied it, and was in possession, at the time of plaintiff’s purchase. It appeared that, prior to the purchase from Rogers, N. B. Pope lived with the defendant as a member of his family, and that after the purchase they moved onto the premises, and Pope lived with the defendant as before. The court said defendant’s possession was equivocal, and consistent with the record title in Pope, since Pope was also in possession, and there was nothing to indicate that defendant’s possession was not subordinate to his, or suggest hostility to the record title. Upon this subject it is said in 2 Pom. Eq. Jur. § 620: “Ño mere occupation of the premises in common, or in connection with a third person, and no mere exercise of acts of ownership, equivocal in their nature, over the land, will then suffice.” In the present case, it appears that the house was quite a large one; that it was arranged and built for occupation by two families, living entirely separate. There was no garden. The yard was occupied in common, as were also certain other privileges in connection with the house. The outside appearance of the house is not shown. It was built by the son; he first moving in, and afterwards the father. The son was in business; the father, apparently, not. In the house the families lived separate. This continued from 1871 to 1885; the record all the time showing the son to be the owner, and no claim there by the father. With considerable force may it be said that such an occupancy by the father was equivocal, and not inconsistent with the record title of the son. There was a common use, to a certain extent; and the fact that the families lived in the house separate would not materially change the situation. It would be a case where, apparently, the father was living with the son, in the son’s house. The principle adopted and applied in the Pope Case substantially applies here. Within that, it must, I think, be held that the possession of Jesse L. Wood was not such as to amount to constructive notice. No actual notice is shown. The plaintiff is in the position of a purchaser for a valuable consideration, within the recording act. At the time he took the mortgage, he surrendered obligations upon which not only the mortgagor, but others, were liable; and he also gave time. • Cary v. White, 52 N. Y. 138. There was a new and substituted contract.
It is argued by the defendant that the provision in the mortgage giving the mortgagees the permission or right to occupy certain rooms, with certain privileges, was in fact a lease for life, and that the provisions of the recording act do not apply to it, and that therefore it is good, as against plaintiff, without recording. The provisions of the recording act do not “extend to leases for life or lives, or for years, ” in the counties of Delaware and certain others. Section42, c. 3, pt. 2, Rev. St.; 4 Rev. St. (8th Ed.) 2476. This provision is taken from chapter 263 of the Laws of 1823. The mortgage in question is not a lease, within the meaning of that act. The father advanced certain moneys upon the agreement by the son to secure them by said mortgage. When the mortgage came to be given, the payment of the interest was pro*82vided for in a certain way. The father did not become the tenant of the son. Ho rent was reserved. The son agreed that the interest should be paid in that way, and for any default in that agreement the father was given a remedy by foreclosure. Such is not a characteristic of a lease. It follows that the judgment should be affirmed.