dissenting:
When the mortgage owned and sought to be foreclosed by appellant was executed and assigned to her, and when the mortgage and assignment to her were recorded, the public records showed that Emma L. Morgan held title to the mortgaged premises,, and Boland L. Morgan, her husband, held the mortgage now sought to be foreclosed by appellee. This mortgage was made to said Boland L. Morgan by Henry Bother, a former owner of the premises, and the note secured by it had been sold and assigned to appellee and delivered to it with the mortgage, but no assignment of the mortgage had been executed. So far as appeared from the records Roland L. Morgan was still the owner. Mr. Sills represented the Morgans, and secured from appellant $1000 on the note and mortgage owned by her, representing it to be a first mortgage. It was made to Rogers for convenience and assigned by him. The note secured was the joint and several note of said Emma L. Morgan and Roland L. Morgan, and the mortgage was executed by both of them. There is no reservation oh the part of Roland L. Morgan and the conveyance is not limited to his inchoate right of dower, but the mortgage is in every respect sufficient to pass whatever estate, title or interest, legal or equitable, he had in the premises. Such was the effect of the conveyance.. (Donlin v. Bradley, 119 Ill. 412.) The fact that his name was placed after that of his wife and he was described as her husband will not justify a holding that he only waived dower when he had a further estate in the premises. (Lake Erie and Western Railroad Co. v. Whitham, 155 Ill. 514.) So far as the public record showed he did have the further estate of a mortgagee in the premises conveyed. Appellant was justified in dealing with him as being the owner of the first mortgage, and between appellant and his secret assignee the case must be decided as though he were in fact the owner seeking to enforce his mortgage as a prior lien. It seems to me that his assignee, standing in his shoes, is precluded from asserting rights superior to those of appellant. There was no presumption of law that he had transferred the note or mortgage, and the agent of the Morgans represented that appellant’s mortgage would be a first lien. Appellant had no actual notice of the rights of appellee, and I think she had a right to rely on the record. (Ogle v. Turpin, 102 Ill. 148.) Appellee might have protected itself by taking an assignment and having it recorded, but negligently failed to do so.