Van Rensselaer v. Stafford

The question now to be decided, is, which of these two mortgages shall have preference to the other; it being admitted, that the mortgaged land is not sufficient in value to satisfy both incumbrances.

While Van Deusen was a mortgagee, holding these two mortgages, with full power over both, he was at liberty to transfer either or both of them ; he had power to tranfer one of them, in such manner as to give his assignee a preference *573jgainát the other mortgage retained by himself 5 and such a preference might be given either by express stipulation, or by the effect of equivalent acts.

Van Deusen assigned the mortgage for 1180 dollars, to Van Rensselaer, on the twentieth day June, 1816; and on the eighteenth day of March, 1817, he assigned to Stafford and others, the mortgage for 676 dollars and 96 cents.

The assignment to Van Rensselaer, was an absolute transfer of all Van Deusen’s right in the mortgage for 1180 dollars; it was made for a just debt due from Van Deusen to Van Rensselaer; and it must have been intended by both of them, to create an effectual security to Van Rensselaer, for that debt. The mortgage for 676 dollars and 96 cents being retained by Van Deusen, he continued to be a creditor,by that mortgage; Van Rensselaer became a creditor, upon the assigned mortgage: and by these acts, Van Deusen postponed his own claim as a mortgage creditor, to that of Van Rensselaer.

This construction of the acts of Van Deusen is also strongly supported by other considerations. Both these mortgages were made to Van Deusen ; but he received them for very different purposes. The mortgage for 676 dollars and 96 cents was given by Wright, and taken by Van Deusen, for a debito Van Deusen, in which no other person had any interest; and in respect to this mortgage, Van Deusen was the absolute creditor, as he was the mortgagee, without any trust or obligation, in favor of any other person. But the mortgage for 1180 dollars, though made to Van Deusen, was intended for the use of Van Rensselaer, and to secure to him the unpaid balance of the price of the land which he had sold to Van Deusen : or if there is any doubt that such was the intention of Wright, it is certain that Van Deusen intended that this mortgage should become the first incumbrance on the land, and an effectual security to Van Rensselaer. Van Deusen was indebted to Van Rensselaer for the unpaid balance of the price of the land which he had purchased from Van Rensselaer ; and he had agreed with Van Rensselaer, to secure that balance by a mortgage of the land. Van Deusen therefore, in effect, received and held the mortgage for 1180 dol*574lars in trust for Van Rensselaer : and his intention was, that this mortgage should become the first incumbrance, by a prior registry. But after the two mortgages had been registered at the same time, it was still in the power of Van Deusen. . x holding both, to give the priority against himself, which he had intended. Retaining the mortgage which was purely his own, he assigned to V an Rensselaer the mortgage which he held and intended for the use of Van Rensselaer. These acts of Van Deusen took place, not only while he had the power to prefer one of these mortgages to the other, but also in discharge of his obligation to give Van Rensselaer an effectual security, by a mortgage of the land. The assignment to Van Rensselaer was thus not merely an arbitrary preference by Van Deusen, of the assigned mortgage to the mortgage retained; but it was the just discharge of a duty; a fulfilment of the confidence which Van Rensselaer had reposed in Van Deusen ; and a substantial compliance with the antecedent contract of these parties. It is therefore entirely in accordance with the intentions of Van Deusen and Van Rensselaer, and with the justice of the case between them, that Van Deusen should be held to have postponed the mortgage which he retained as his own, to the mortgage which he assigned to Van Rensselaer.

Had Van Deusen, after his assignment of one mortgage to Van Rensselaer, attempted to enforce the other mortgage remaining in his own hands, against the rights of Van Rensselaer, the injustice of such an attempt would be manifest. If Van Deusen might set up the unassigned mortgage held by himself, to defeat the mortgage which he had assigned, lie would frustrate his own assignment, and destroy or impair the security which he had given to Van Rensselaer. He Could do no act impairing the faith and force of his own prior assignment ; he, by that assignment, virtually postponed the mortgage which he retained, to the mortgage which he assigned ; and while he and Van Rensselaer both stood as mortgage creditors, it is clear that Van Rensselaer, as a creditor, was entitled to preference over Van Deusen, as a creditor.

This preference is not affected by the provisions of our law, concerning the registry of mortgages. It is not a preference *575defeating or impairing the title of any purchaser of the land ; and the mortgagor has no interest in the question.' It is a e question between mortgage creditors, whose rights are by the registry of their mortgages equally protected against purchasers ; but whose rights against each other here result from facts wholly distinct from the registry. Van Deusen, holding both mortgages, postponed one to the other, against himself, as he might well do. This state of rights between Van Rensselaer and Van Deusen, results from the clearest principles of law and morals ; and Van Rensselaer’s right to a preference against Van Deusen, was in the language of this court, an equity, a claim of justice, which courts of equity enforce.

As Van Deusen had thus postponed the mortgage which he retained, his subsequent assignment of that mortgage to Stafford and others, could not destroy the equity which he had created; and which had become a perfect right in Van Rensselaer. Van Deusen’s- assignment to Stafford and others, transferred to them all the right which he then held; and his right, as it was then held by him, was subject to the preference which Van Rensselaer had previously acquired. Van Deusen could not by a transfer, divest or destroy the right which existed between him and Van Rensselaer ; and Stafford and others, his assignees, took the mortgage assigned t© them, charged with all the equity which existed against it5. while it belonged to their assignor.

In the case of Clute against Robison, 2 John. 595, the court of errors held, that the assignee of a mortgage takes it subject to all just claims existing against it; and that this is so, whether the assignee has notice of such claims or' not. ■These principles having been established by that court, require no discussion ; and they must govern this case. Stafford and others, therefore, stand in the place of their assignor, and hold the mortgage assigned to them, subject to all the equity which Van Rensselaer had against Van Deusen. It never could have been permitted to Van Deusen to enforce the mortgage for 676 dollars and 96 cents, against the mortgage which he had assigned to Van Rensselaer ; and the same equip table preference which Van Rensselaer had against Van Deusen, must now prevail against Stafford and others.