Willard v. Denise

• Decision Date: 07 March 1893
• Citation: 50 N.J.E. 482,26 A. 29
• Parties: WILLARD v. DENISE.
• Court: New Jersey Supreme Court

26 A. 29

50 N.J.E. 482

WILLARD

v. DENISE.

Court of Errors and Appeals of New Jersey.

March 7, 1893.

(Syllabus by the Court.)

Appeal from court of chancery.

Suit by Harold E. Willard, trustee for Asbury Park National Bank, against Annie E. Denise, to declare petitioner's mortgage from Mary E. Taylor prior to a mortgage from the same person to respondent, and entitled to be first satisfied out of the surplus proceeds arising from a sale of the mortgaged premises. There was a decree in favor of respondent, and petitioner appeals. Affirmed.

Peter Backes, for appellant.

E. W. Arrowsmith & Son and Frank P. McDermott, for respondent.

GARRISON, J. This is a contest over surplus money paid into the court of chancery in a foreclosure suit after the complainant's mortgage had been satisfied out of the proceeds of the sale of the mortgaged premises. The struggle for priority is between two mortgages made by Mary E. Taylor in 1889, — one to Annie E. Denise, the respondent, and the other to the Asbury Park National Bank, the petitioner. Respondent's mortgage, though earlier in execution and delivery, remained unrecorded at the time the petitioner's mortgage was placed upon the record. The question in the case is whether the bank had notice of the earlier unrecorded mortgage. The facts upon which notice to the bank is asserted are these: George W. Byram, an attorney at law, in active practice, was, during the period covered by the whole of this transaction, likewise president of the Asbury Park National Bank. In the course of his legal business, he had actual knowledge of the making and delivery of respondent's mortgage, which was in fact drawn and executed in his office, and witnessed and acknowledged before him, as a master in chancery. This was in April, 1889. In October of the same year, Mr. Byram, as president of the bank, participated in the taking of the other mortgage executed by the same mortgagor upon the same premises six months later. By his actual participation in this latter transaction, the knowledge of the earlier mortgage possessed by Byram is imputable to the corporation whose agent he was. The fact that the information had not been acquired by him in the course of his agency does not militate against the application of the rule in question, when the agent personally participates in the later transaction on behalf of the corporation. Where information is casually obtained by an agent for a corporation, the corporation is not charged with...