Learned, P. J.
The plaintiff commenced the foreclosure of a mortgage. Certain defendants, Miller and others, set up that another mortgage on the same premises, held by one Anderson, not then a party, was a concurrent lien with plaintiff’s mortgage, and that Anderson should be made a party. Thereupon the plaintiff served an amended complaint, setting out further facts, and the claim of Miller and others, defendants, and averring that the plaintiff had not sufficient knowledge to form an opinion whether said Anderson’s mortgage was a prior or a concurrent lien. The plaintiff made Anderson a party. On the trial the court found that the Anderson mortgage was the prior lien. The plaintiff does not appeal, but Emeline Miller, and Emeline Miller and another, executrix and executor of Allen S. Miller, do appeal. Allen S. Miller had previously held the mortgage now held by plaintiff, and had guarantied the payment. The judgment required Emeline Miller, who, as legatee, bad received a certain amount from the estate of Allen S., to make good any deficiency on the foreclosure to the extent of the amount she had received. The two questions, then, are: First. Were the two mortgages concurrent liens, or was the Anderson mortgage a prior lien ? Second. Can there be a judgment against Emeline Miller for deficiency?
The two mortgages were purchase-money mortgages, executed at the same time by one Stupplebeen; the one now held by plaintiff being executed to Richard Miller, the one now held by Anderson being executed to Harvey Miller; each covering the whole property, and each dated April 1, 1870, and payable in 10 years. The learned judge before whom the cause was tried, adopting the verdict of the jury on this point, found that on the day of the date of the said mortgages, and before the actual delivery thereof, it was agreed between said Richard and Harvey that the said mortgage executed to Harvey should be and remain the first lien on the said premises, and should have priority over that executed to Richard. The said judge further finds that, in pursuance of said agreement, the said mortgage to Harvey was im[635]*635mediately recorded, viz., on that day, at 2:40 p. m., and that the said mortgage to Eichard was left to be subsequently recorded, and was recorded by the assignee thereof April 2,1870, at 12:30 p. h. The said judge further finds that at the time of making the agreement aforesaid it was the intention of Eichard to transfer the mortgage received by him to one Arnold Wise in part payment for a farm purchased by him of said Wise; that said Harvey knew of said intention; that said agreement by which Harvey’s mortgage was to have priority was not disclosed to said Wise, nor was said Wise informed in any way whether or not said mortgages were equal and concurrent liens. Said Eichard, on said 1st day of April, assigned his said mortgage to said Wise, who took the same at its face as part payment on a farm thus conveyed by him to Eichard, and took the same believing it and the mortgage to Harvey to be equal and concurrent liens. Ho consideration was paid by Harvey to Eichard for the agreement that Harvey’s mortgage should have priority. Ho agreement as to priority was made with Stupplebeen, the mortgagor. Stupplebeen was, however, present at the time when the agreement was made. The question was submitted to the jury whether the attorney for Mr. Wise was informed, after the execution of the bonds and mortgages, that they were equal liens in point of time. The jury answered in the negative, and the court adopted the finding. This question was put to raise a presumption that the said agreement between Eichard and Harvey was made with intent to defraud Wise. But such intent is not shown. Stupplebeen paid more than $6,000 for the property above the two mortgages of $4,000 each; so that the second mortgage in point of priority would have been at that time a good security for the amount thereof. If the two mortgagees, before the actual delivery of the mortgages, agreed that one should have priority over the other, that agreement is binding, and will be carried into effect, even though the mortgages were recorded at the same time. Jones v. Phelps, 2 Barb. Ch. 440. In that case the court says that the law, in order to carry out the agreement of the parties, will presume that the mortgage which was to have priority was delivered before the other. The converse of this principle was decided in Greene v. Warnick, 64 N. Y. 220. In that case the agreement was that the two mortgages were to be concurrent liens; and this agreement was enforced, although one was recorded before the other, and each had passed into the hands of a bona fide holder. To a similar effect is Stafford v. Van Rensaelaer, 9 Cow. 316. So that, as said in Granger v. Crouch, 86 N. Y. 494, “the decisive test in every ease is the intention of the parties, either as actually expressed or as derived from the natural equity of the situation. ” How, in the present case, nothing is expressed in the instruments on the question of priority. The fact that they are of even date and of signature and acknowledgment may afford a presumption that they were intended to be ■concurrent; but such concurrence is not expressed in them, and the presumption yields to proof of the agreement. It was certainly competent for all the parties to agree that one mortgage should be delivered and recorded before the other, and should thus have the priority. As Stupplebeen was present at the making of the agreement, and did not object, and as the matter was one in which he seems to have had no real interest, he must be considered as assenting to the agreement between the mortgagees. See Freeman v. Schroeder, 43 Barb. 620. In several of the cases above referred to the intention of the parties did not harmonize with the priority apparent on the record, and the intention was held to overcome that apparent priority. In the present case the intention and the apparent priority on the record agree. If the agreement was, as found by the jury and the court, prior to the delivery of the mortgages, it became an executed agreement by the delivery of Harvey’s mortgage to him with the consent of Eichard, and with the evident purpose that it was to be recorded before Bichard’s. It was not an agreement necessarily expressed in the mortgage. It was collateral, and not merged in the [636]*636mortgage. Nor does it vary the written instruments, because nothing was-expressed in them as to priority.
The appellants, passing the question whether the agreement was valid as between Richard and Harvey, claim certain equities for Wise. They say that the agreement was a fraud upon him. But there is no proof of any intention to defraud him. Indeed, the fact that Harvey’s mortgage was recorded at once indicates a desire to give notice to the world of the priority agreed upon -r and when Wise took the assignment from Richard he could have seen Harvey’s mortgage on record. The fact that Harvey knew that Richard intended to assign his mortgage to Wise is no evidence that a fraud was intended. Nearly $7,000 had been that day paid for the property over and above the two mortgages of $4,000 each. The appellants urge the principle that one who stands by in silence and permits another to deal with his property may be estopped; but that principle has no application, for Harvey at once gave notice to the world of his mortgage, and recorded it as first lien. Wise, then, if he had looked at the records to see whether he was obtaining a good mortgage, would have found Harvey’s mortgage on record.
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Learned, P. J.
The plaintiff commenced the foreclosure of a mortgage. Certain defendants, Miller and others, set up that another mortgage on the same premises, held by one Anderson, not then a party, was a concurrent lien with plaintiff’s mortgage, and that Anderson should be made a party. Thereupon the plaintiff served an amended complaint, setting out further facts, and the claim of Miller and others, defendants, and averring that the plaintiff had not sufficient knowledge to form an opinion whether said Anderson’s mortgage was a prior or a concurrent lien. The plaintiff made Anderson a party. On the trial the court found that the Anderson mortgage was the prior lien. The plaintiff does not appeal, but Emeline Miller, and Emeline Miller and another, executrix and executor of Allen S. Miller, do appeal. Allen S. Miller had previously held the mortgage now held by plaintiff, and had guarantied the payment. The judgment required Emeline Miller, who, as legatee, bad received a certain amount from the estate of Allen S., to make good any deficiency on the foreclosure to the extent of the amount she had received. The two questions, then, are: First. Were the two mortgages concurrent liens, or was the Anderson mortgage a prior lien ? Second. Can there be a judgment against Emeline Miller for deficiency?
The two mortgages were purchase-money mortgages, executed at the same time by one Stupplebeen; the one now held by plaintiff being executed to Richard Miller, the one now held by Anderson being executed to Harvey Miller; each covering the whole property, and each dated April 1, 1870, and payable in 10 years. The learned judge before whom the cause was tried, adopting the verdict of the jury on this point, found that on the day of the date of the said mortgages, and before the actual delivery thereof, it was agreed between said Richard and Harvey that the said mortgage executed to Harvey should be and remain the first lien on the said premises, and should have priority over that executed to Richard. The said judge further finds that, in pursuance of said agreement, the said mortgage to Harvey was im[635]*635mediately recorded, viz., on that day, at 2:40 p. m., and that the said mortgage to Eichard was left to be subsequently recorded, and was recorded by the assignee thereof April 2,1870, at 12:30 p. h. The said judge further finds that at the time of making the agreement aforesaid it was the intention of Eichard to transfer the mortgage received by him to one Arnold Wise in part payment for a farm purchased by him of said Wise; that said Harvey knew of said intention; that said agreement by which Harvey’s mortgage was to have priority was not disclosed to said Wise, nor was said Wise informed in any way whether or not said mortgages were equal and concurrent liens. Said Eichard, on said 1st day of April, assigned his said mortgage to said Wise, who took the same at its face as part payment on a farm thus conveyed by him to Eichard, and took the same believing it and the mortgage to Harvey to be equal and concurrent liens. Ho consideration was paid by Harvey to Eichard for the agreement that Harvey’s mortgage should have priority. Ho agreement as to priority was made with Stupplebeen, the mortgagor. Stupplebeen was, however, present at the time when the agreement was made. The question was submitted to the jury whether the attorney for Mr. Wise was informed, after the execution of the bonds and mortgages, that they were equal liens in point of time. The jury answered in the negative, and the court adopted the finding. This question was put to raise a presumption that the said agreement between Eichard and Harvey was made with intent to defraud Wise. But such intent is not shown. Stupplebeen paid more than $6,000 for the property above the two mortgages of $4,000 each; so that the second mortgage in point of priority would have been at that time a good security for the amount thereof. If the two mortgagees, before the actual delivery of the mortgages, agreed that one should have priority over the other, that agreement is binding, and will be carried into effect, even though the mortgages were recorded at the same time. Jones v. Phelps, 2 Barb. Ch. 440. In that case the court says that the law, in order to carry out the agreement of the parties, will presume that the mortgage which was to have priority was delivered before the other. The converse of this principle was decided in Greene v. Warnick, 64 N. Y. 220. In that case the agreement was that the two mortgages were to be concurrent liens; and this agreement was enforced, although one was recorded before the other, and each had passed into the hands of a bona fide holder. To a similar effect is Stafford v. Van Rensaelaer, 9 Cow. 316. So that, as said in Granger v. Crouch, 86 N. Y. 494, “the decisive test in every ease is the intention of the parties, either as actually expressed or as derived from the natural equity of the situation. ” How, in the present case, nothing is expressed in the instruments on the question of priority. The fact that they are of even date and of signature and acknowledgment may afford a presumption that they were intended to be ■concurrent; but such concurrence is not expressed in them, and the presumption yields to proof of the agreement. It was certainly competent for all the parties to agree that one mortgage should be delivered and recorded before the other, and should thus have the priority. As Stupplebeen was present at the making of the agreement, and did not object, and as the matter was one in which he seems to have had no real interest, he must be considered as assenting to the agreement between the mortgagees. See Freeman v. Schroeder, 43 Barb. 620. In several of the cases above referred to the intention of the parties did not harmonize with the priority apparent on the record, and the intention was held to overcome that apparent priority. In the present case the intention and the apparent priority on the record agree. If the agreement was, as found by the jury and the court, prior to the delivery of the mortgages, it became an executed agreement by the delivery of Harvey’s mortgage to him with the consent of Eichard, and with the evident purpose that it was to be recorded before Bichard’s. It was not an agreement necessarily expressed in the mortgage. It was collateral, and not merged in the [636]*636mortgage. Nor does it vary the written instruments, because nothing was-expressed in them as to priority.
The appellants, passing the question whether the agreement was valid as between Richard and Harvey, claim certain equities for Wise. They say that the agreement was a fraud upon him. But there is no proof of any intention to defraud him. Indeed, the fact that Harvey’s mortgage was recorded at once indicates a desire to give notice to the world of the priority agreed upon -r and when Wise took the assignment from Richard he could have seen Harvey’s mortgage on record. The fact that Harvey knew that Richard intended to assign his mortgage to Wise is no evidence that a fraud was intended. Nearly $7,000 had been that day paid for the property over and above the two mortgages of $4,000 each. The appellants urge the principle that one who stands by in silence and permits another to deal with his property may be estopped; but that principle has no application, for Harvey at once gave notice to the world of his mortgage, and recorded it as first lien. Wise, then, if he had looked at the records to see whether he was obtaining a good mortgage, would have found Harvey’s mortgage on record. There was nothing in the contents, of either mortgage to show that another similar mortgage existed, as concurrent or otherwise. Wise held the mortgage for about nine months; his assignee and the subsequent assignees for-some seventeen years. During this time it does not appear that any question of fraud upon Wise had been raised, or that any claim had been made that Harvey’s mortgage was not rightfully the prior lien. Even the present plaintiff averred in her complaint that the Harvey mortgage was the prior lien, and therefore did not make the holder a party until compelled to do so. The claim of fraud is certainly stale.
The appellants further urge that, as Wise had agreed some time in January previous to sell his farm to Richard, Wise became in equity the owner of Richard’s mortgage. But the contract between Wise and Richard is not given in evidence. There is no evidence whatever that by that contract Richard was to assign to Wise this mortgage in part payment. This is asserted in the appellants’ points, but is not proved, and is improbable. Nor is there any proof that Harvey thought that Wise expected to receive a first or a concurrent mortgage. This mortgage had no existence when that contract was made; and, as the appellants did not produce the contract, or prove its contents, we cannot assume that that contract referred to a mortgage not in existence, or that it specified such a mortgage to be a first lien. It is impossible, then, on the facts proved, to say that Wise had any equitable rights in Richard’s mortgage. Nor is there any evidence that Richard, when he assigned his mortgage to Wise, represented that it was a prior or a concurrent lien. One who assigns a second mortgage does not, by that act, guaranty that it is a first lien, even though the first mortgage were not on record. Indeed, at another part of their argument the appellants admit that the ques-' tian, so far as the assignees are concerned, is the same as if the contest were-between Richard and Harvey. This was held in Greene v. Warnick, ubi supra, and other cases, in spite of all the protection intended to be given to a bona fide purchaser by the recording acts. If the appellants are correct in this,—■ that is, if the question here is just what it would be if Richard and Harvey -were now the separate owners of the two mortgages,—can there be a doubt that the learned judge was right? The two mortgages as yet not being delivered, the owners agree that Harvey’s shall have priority. Thereupon, in pursuance'of that agreement, Harvey’s is immediately recorded, and, of course,, delivered. Thus the agreement is executed. The plaintiff claims ownership of her mortgage through an assignment and guaranty made by Allen S. Miller, since deceased. Reuben Miller and Emeline Miller were his executor and executrix. His personal property amounted to $5,607.54. There whs a final accounting of the executor and executrix in October, 1884, under which they [637]*637paid to Bmeline, the widow, $2,514.75 on her legacy. Allen S. Miller left a valuable farm, the use of which was given to her for life. The judgment directs that if .there is a deficiency Bmeline pay that to the extent of the money received by her aforesaid. It also adjudges the executor and executrix to pay ■any further deficiency. The decree entered on the accounting of the executor and executrix does not show who was cited. It is evidence conclusive only against those who were cited or appeared. Code, § 2742. There is no proof of any advertisement for claims. 2 Bev. St. marg. p. 88, § 34, and Id. marg. p. 89, § 39. So that there is no evidence before us showing that the executor and executrix are relieved from liability for this claim. As to the liability of the legatee, that appears, according to sections 1837 to 1841 of the Code; and we do not see why a judgment may not be had against her. The judgment does not autiiorize a sale of the real estate of the deceased. It states only that this judgment is without prejudice to proceedings which may be taken. The appellants are in error in their understanding of the language of the decree. The words, “remaining unsatisfied from proceeds of sale of said real estate, ” are to be read together to refer to the sale of the mortgaged premises, “said real estate.” We see no error in the case. The judgment is affirmed, with costs.
Mayham, J., concurs.