dissenting :
"When this case "was here before (12 Hun, 325), the jury had found that the plaintiff had notice of the contract with Guy at the time when he took his mortgage. The majority of the court held, however, that notwithstanding such notice, the mortgage was valid against Guy, to the extent of the payments made by him, after actual-notice of the existence of the plaintiff’s, mortgage. On the *11last trial the referee found that the plaintiff had no. notice .of the contract with Guy, when he took his mortgage.
If we assume, however, that, although the plaintiff had no notice of Guy’s contract, yet that, as his mortgage was taken to secure a precedent debt, he gained no rights against the money paid by Guy, the further question arises: could Guy have successfully defended against the bond and mortgage held by the Flacks ? If not, then ho should be protected in respect‘to the money paid on the mortgage, as well as in respect to the money paid at the time when he received his deed. The referee has found that Guy had no defense to that bond and mortgage.
Scribner executed to Guy “ an ordinary warranty deed ” of the premises. Guy gave back this $1,300 bond and mortgage for a part of the purchase-money, and went into possession of the premises and so remains. If sued upon this bond and mortgage, his defense would be that, at the time when he received his warranty deed, the premises were incumbered by the mortgage to the plaintiff. I think that the decisions hold that this is not a good defense as long as Guy is not evicted. (Parkinson v. Sherman, 74 N. Y., 88 ; Sandford v. Travers, 40 Id., 140; Curtiss v. Bush, 39 Barb., 661; Edwards v. Bodine, 26 Wend., 109; Leggett v. McCarty, 3 Edw. Ch., 124; Abbott v. Allen, 2 Johns. Ch., 519 ; Bumpus v. Platner, 1 Id., 213.)
This appears more strongly when we consider that, from the time of the contract, Guy -was the equitable owner of the land; and that, as above stated, the plaintiff parted- with nothing for his mortgage, and therefore acquired no rights as against the dealings and contracts of Guy, made in good faith.
It may be said that the mortgage to the plaintiff operated ,as an assignment of Scribner’s rights in the land and in the contract, so that the plaintiff was entitled to have whatever Scribner should receive from Guy. That may be so. The plaintiff may have been equitably entitled to compel Scribner to assign to him the $1,300 mortgage given by Guy on the purchase. But that is not a claim that the mortgage is not binding on Guy; on the contrary, it is a claim that, being binding on Guy, it should have been transferred by Scribner to plaintiff. Tn fact, the plaintiff has never insisted *12that this $1,300 mortgage rightfully belonged to him; but has, insisted that his own mortgage was valid, and that this was subject thereto. And when Guy was threatened with foreclosure by thu Flacks, I do not see that ho could have interpleaded them §.nd the plaintiff. For the plaintiff never claimed any interest, legal or equitable, in the $1,300 mortgage. ' ■ ■ ■ ■
To illustrate : Suppose that Scribner, after executing the plaintiff’s mortgage for a precedent debt, had assigned to a third party for a valuable and present consideration all the moneys to be received from Guy on the contract. It does not seem to me that Guy could have resisted the claim of such third party to the moneys.
. Judgment affirmed, without costs to either party.