O'Mulcahy v. Holley

Gilfillan, C. J. *

The facts found by the court below — and there is no complaint made here of the findings of fact — do not sustain plaintiff’s claim that the intervenors Holley and Brown are estopped from asserting their title to the note and mortgage which are the subject of plaintiff’s action; for although they were silent as to their ownership, when, perhaps, they ought to have given plaintiff notice of it, yet it' is not found that such silence influenced in any manner his conduct, nor that, in consequence of it, he did anything that he would have refrained from doing, had he known of their title.

Plaintiff is not entitled to the protection of the registry laws. He took the assignment of the note and mortgage after the mortgagee, his assignor, had transferred and delivered them to Holley and Brown. The fact that his assignor had not possession of the note and mort *33 gage which he assumed to assign, was sufficient to put the plaintiff upon inquiry as to the defect in the assignor’s title. It does not appear that he made any inquiry. Plaintiff was not, therefore, a subsequent purchaser in good faith, within the meaning of the registry law.

Note. A motion for reargument of this ease was denied May 30, 1881. — [Reporter.

The assignor’s covenant in the assignment, that he had good right and lawful authority to sell and assign the note and mortgage, does not establish the fact that plaintiff made any inquiry into the assign- or’s title; nor, if he made such inquiry, that he was not fully informed of the defect in it.

Judgment affirmed.

Berry, J.

I agree to the general conclusions arrived at in this case, but not to the particular ground upon which the question of estoppel is disposed of.

Cornell, J., because of illness, and Mitchell, J., because of having tried the case below, took no part in this decision.