Gleson, 79 N, Y. 23; Jones v. Smith, 22 Mich. 360; Pom. Eq. vol. 1, § 704-9, 733; Oster v. Mickley, 28 N. Rep. 710; Hostetter v. Alexander, 22 Minn. 559. The exception to this rule in favor of assignee of mortgage securing a negotiable note does not apply here because the note secured was non-negotiable. The language of the recorded release of the first mortgage (quoted in the opinion below) was sufficient to put Barnes upon inquiry; and he was bound by all that the record disclosed; citing, Jones on Mtgs. §§ 557-63; Youngs v. Wilson, 27 N. Y. 351. The new mortgage to Morris was recorded before the assignment to Barnes was recorded, and thereby Barnes was shut out. Decker v. Boice, 83 N. Y. 215. The record of the Beecher & Dean mortgage was not constructive notice to Morris. Jones on Mtgs. 8§ 723, 982, 624.
Messrs. Francis & Southard, (Thomas & Davis of counsel,) for fespondents, argued: A mortgage released in ignorance of an intervening right, cannot be restored to its former priority against such as have in good faith acquired rights on the faith of the release; citing, Pom. Eq., vol. 2, §§ 776-83; Jones on Mtgs. § 966.
Corliss, C.J. This controversy presents conflicting claims of the plaintiff, and of the defendant Elizabeth McKnight to certain real estate. Each asserts title under foreclosure of a different mortgage upon the same land. The effort of each, therefore, is to sustain the priority of the mortgage under which he or she claims title. The plaintiff in 1881 was the owner of the property in question. On the 27th of June of that year he conveyed the same to Beecher & Dean, taking back a purchase-money mortgage for $4,500 upon the land, which, however, was never recorded, having been subsequently lost. Beecher & Dean on the 14th of September, 1882, conveyed the premises to Eugene McKnight, who assumed this unrecorded mortgage, and gave back to Beecher & Dean a purchase-money mortgage, which in express terms was made subject to the unrecorded mortgage. Dean thereafter assigned to Beecher his interest in the mortgage given to Beecher & Dean. Eugene McKnight having bought the land subject to the unrecorded
