Lewis C. Trombly, as Administrator, etc., of Louisa Wool, Deceased, Appellant, v. Benton Turner and Others, Defendants, Impleaded with The People of the State of New York, Respondent

Lewis C. Trombly, as Administrator, etc., of Louisa Wool, Deceased, Appellant, v. Benton Turner and Others, Defendants, Impleaded with The People of the State of New York, Respondent. Third Department, November 14, 1906. Beal property •— Becording Act — when title of purchaser superior to lien of prior mortgage based on unrecorded title — when purchaser not put upon inquiry. OneD., owning lands, conveyed to T,, who did not record his deed, but mortgaged the lands to his wife, who in turn assigned the mortgage to plaintiff’s intestate. The mortgage and assignment were recorded. ' Subsequently the original owner conveyed the same lands to the wife of T., who recorded her deed, and thereafter with her husband conveyed said lands, together with other premises, to the State for full value. The State before purchasing took the affidavits of T. and his wife, stating that she was the owner of the lands in fee simple. On the issue as to whether the title of the State was superior to the lien of the prior mortgage, Held, that the title of the State was superior to the lien of the mortgage given by the holder of the unrecorded title by virtue of the Recording Act, unless the State had knowledge of facts sufficient to put it upon inquiry as to the prior unrecorded deed. That, in view of the affidavits of the grantor and her husband showing that she . was the owner, there was nothing to put the State upon inquiry; •That the fact that the State had deducted from the purchase price the amount of judgments existing against the husband did not show knowledge of his prior unrecorded title, owing to the fact that the purchase by. the State included lands in another county, and it did not appear that the husband did not own some of the lands in such other county. . Appeal by the plaintiff, Lewis C. Trombly, as administrator, etc., from so much of a judgment of the Supreme Court in favor of the defendant, The People of the State of New York, entered in the office of the clerk of the county of Franklin on the 22d day of December, 1905, upon the decision of the court rendered after a trial at the Franklin Special Term, as decrees the respondent to be the owner of certain described lands, free and clear from the lien of a certain mortgage held by the plaintiff. C. J. Vert, for the appellant. Julius M. Mayer, Attorney-General, and John H. Burke, for the respondent. [MAJORITY — Cochrane, J.:] Cochrane, J.: This action was instituted to foreclose a mortgage covering real estate in the counties of Franklin, Essex and St. Lawrence. The usual judgment of foreclosure and sale in respect to.the mortgaged premises has been granted except that the judgment adjudicates that an undivided twenty-five-thousand sixty-seven-thousand-onelmndredths of four thousand acres of such real estate in said county of Franklin belongs to the People of the State of New York free from the lien of. said mortgage although covered thereby and exempts such land from the operation of the mortgage. The controversy relates solely to this land in Franklin county. In 1897 David F. Dobie, being the owner of said land in question, conveyed the same to Benton Turner by a deed which has not been recorded in Franklin county. .Benton Turner thereafter in the same year executed the mortgage in question to his wife, Julia H. Turner, who assigned it to the plaintiff’s intestate and both the mortgage and the assignment' were duly recorded in Franklin county prior to the year 1900. In 1900 said David F. Dobie executed another deed of the premises in question to said Julia H. Turner which was recorded in Franklin county February 13, 1900. On March 6, 1900, Julia EL. Turner, wife of Benten Turner, and said Benton Turner executed to the People of the-State of New York a deed coiiveying'said premises together with other premises in Franklin and Essex counties, which deed was duly recorded in Franklin county March 15, 1900. Under this last-mentioned deed the respondent claims title to the premises in question as-against the plaintiff’s mortgage; It thus appears that the plaintiff’s mortgage rests on an unrecorded deed of the mortgagor; while the respondent presents a complete chain of record title. The State paid full value for all. the land it received under the Turner deed, and the plaintiff concedes that the State is within the protection of the Recording. Act unless it liad knowledge -of facts sufficient to put it on inquiry as to the unrecorded deed of the plaintiff’s mortgagor. In Williamson v. Brown (15 N. Y. 354) it was said: “ The true doctrine on this subject is, that where a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is abotit to purchase, he -is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser.” z The facts relied on by the appellant are not.in my judgment sufficient to put the State “ on inquiry as to the existence of ” Benton Turner’s unrecorded title. -- When the Staté took title it examined-the'records and properly relied thereon. To make assurance doubly, sure it procured on printed blank forms the affidavits of both Benton Turner and his wife, Julia II. Turner, as to the ownership of the premises it was about to jiurchase. In the affidavit of Benton. Turner there is an opening statement that he is the owner in fee simple of the property referring to the- same. ■ An inspection of the affidavit, however, shows convincingly that there was an inadvertence in not changing.the printed word “he” in the blank form to. “ she,” meaning thereby his wife. Elsewhere throughout the affidavit this change is made, and taking the two affidavits together they would certainly not convey ordinarily the idea that Benton Turner intended to state that he owned the property. The plaintiff urges that as Benton Turner in fact owned, the property he was telling the truth in the opening statement of the affidavit. The question here is not whether or not he was telling the truth, but whether these two affidavits would naturally convey to the mind of a prospective purchaser the idea that Benton Turner was the actual owner of the property notwithstanding the record title to the contrary. Having made a search which showed that one of these affiants, Julia H. Turner, had the record title, I see nothing in these affidavits, considering them together and each in its entirety, which would naturally cast doubt on such record title. The State’s deed was executed by Julia H. Turner, wife of Benton Turner, and said Benton' Turner. The Forest Preserve Board of the State which acquired for the latter the land in. question, together with other land, in its certificate to the Comptroller reciting the purchase repeatedly referred to the vendors of said property as being both Benton Turner and Julia H. Turner, and requested payment out of the purchase price of certain liens which it appears were debts of said Benton Turner, and directed payment, of the residue of the purchase price both to him and his wife. The plaintiff strenuously urges that these facts show that Benton Turner had an interest in the property, and that the State could not pay the judgment liens against his property without being aware of the fact that he had such interest. This argument would be well nigh unanswerable if the State had been acquiring only the property in question. But the deed to the State conveyed not only that property, but a large quantity besides situated both in Franklin and Essex counties, and the Qertificate of the Forest Preserve Board referred to all of the property, and it does not appear that Benton Turner did not in fact own some of the property in Essex county.. If he was the owner of any part thereof, the propriety of his signature to.the deed and of the reference to him in the certificate of the Forest Preserve Board as one of the owners, and of tile payment of his judgment indebtedness, is manifest. Moreover, Benton Turner had owned the premises in question for several years prior to 1891, and unless the judgments were subsequently recovered the fact that they were liens on such property and were paid out of the purchase price would have no significance. It was incumbent on the plaintiff to show that Benton Turner did not own any of the land conveyed by the deed which he signed, and that.these judgments were liens on the particular property in controversy and had their inception after the time when the records showed that Benton Turnér in 1891 owned such property. In the absence of such proof plaintiff’s argument is pointless. Rone of the facts relied on by plaintiff are inconsistent with the record title of Julia H. Turner to the particular property in controversy. The learned trial justice gave due weight to all these facts, and after consideration deemed them insufficient to put the State on inquiry so as to be deprived of the benefit of the Recording Act. I am unable to see how any different conclusion could have been reached. The judgment should be affirmed, with costs. Judgment unanimously affirmed,' with costs; Kellogg, J., not sitting.