Westervelt v. Wyckoff

32 N.J. Eq. 188

• Court: New Jersey Court of Chancery
• Decided: February 15, 1880
• Status: Published

Opinion

The Chancellor.

The mortgaged premises are in Monmouth county, and, on the 24th of April, 1873, were the property of John V. P. Schenck. On that date he gave a mortgage upon them to Hendrick P. Van Pelt and others, which is now held by the executors of Peter P. Van Pelt, deceased. He conveyed the property to Charles F. Wyckoff, December 2d, 1876. The deed was recorded February 27th, 1877. Wyckoff mortgaged the property to the complainant, February 24th, 1877. In the covenants of the deed to Wyckoff, a mortgage for $800 and the interest thereon, given to Peter P. Van Pelt and his brothers (being the before-mentioned mortgage given to Hendrick P. Van Pelt and others), and dated April 24th, 1873, was excepted. It is admitted that the complainant had actual notice of that mortgage when he took his. The Van Pelt mortgage was not recorded until November 13th, 1877.

The question presented for decision is, whether the judgment creditors of Wyckoff, whose judgments were recovered prior to the recording of the Yan Pelt mortgage, are chargeable with constructive notice of that mortgage from the exception before mentioned in the deed from Sehenck to Wyckoff’. That exception would be notice to a bona fide grantee from Wyckoff' for value, for the deed under which he would claim his title contains notice of the existence of the mortgage. A recital in a conveyance of the existence of a prior, unrecorded deed or mortgage is notice to all subsequent parties in the dine of the title. Wade’s Law of Notice §§ 308, 309; Jones on Mort. § 595. The judgment creditors of Wyckoff are chargeable with constructive notice in like manner. Lewis v. Hall, 3 Hal. Ch. 107.