Sanborn v. Robinson

A mortgage of veal estate, witnessed by only one witness, is sufficient to convey the title as between the parties, and all others who had actual notice of the existence of such mortgage.

Writ op Entry by Thomas Sanborn against James H. B. Robinson (and George W. Osgood admitted as defendant). The parties agreed upon the following statement: October 11,1870, Jonathan B. Kelley owned the demanded premises. Upon that day he mortgaged the premises to Josiali R. Dearborn, to secure a note of even date for six hundred dollars. This mortgage, at the time of its execution, was attested by only one witness. It was acknowledged October 11, and recorded October 15, the record as then made showing only one witness. October 18, 1870, Kelley sold to Robinson and took a mortgage back the same day to secure a note of five hundred dollars. At the close of the description in this mortgage are the following words in parenthesis : ( of six hundred dollars b (said premises are subject to a former. J This mortgage (Robinson to Kelley) was recorded October 21,1870. November 1, 1870, Kelley sold and transferred the mortgage note to George W. Osgood, and delivered the mortgage to him. Osgood claims that he took the mortgage, not knowing of the prior mortgage. It is not alleged he had other notice, except what the mortgage-deed (Robinson to Kelley) gave him. Subsequently to the original record of the first mortgage, Thomas Sanborn took that mortgage, the deed when taken by him having on it the names of two witnesses. The signature of the second witness was recorded September 27,1872. The court ruled, pro forma, that the plaintiff could recover. The defendant, Osgood, excepted. The parties agreed that all questions arising on the foregoing statement, whether of law. or fact, be reserved.