Page:North Dakota Reports (vol. 1).pdf/159

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MORRIS v. BEECHER ET AL.
135

purchaser might subsequently buy as a first lien, relying on the statements that the prior lien had been paid and satisfied. It is true that the recording of a subsequent lien is no notice to a prior incumbrancer; but it is difficult to see how this principle will permit a prior mortgagee to cancel the record of his mortgage without examining the records, and then insist upon the mortgage as a prior lien as against an innocent purchaser of a second mortgage, who relies upon the satisfaction as giving the mortgage he is about to purchase priority of lien. One who loans money on real estate, relying on a satisfaction of a mortgage thereon made by the record owner of the mortgage, which, however, had been previously assigned, the instrument not being recorded, is protected. Bacon v. Van Schoonhoven, 87 N. Y. 446. Clearly he would be protected where the satisfaction is made by one who is both on the record and in fact the owner of the mortgage satisfied. The assignee of a second mortgage, who go relies upon such a satisfaction, is as much entitled to protection as one who makes a loan on the property. The only difference is that one makes a loan on a second mortgage believing it to be a first lien, and the other buys a second mortgage believing it to be a paramount incumbrance. They are both deceived by the act of the first mortgagee, and therefore they are both equally entitled to protection as against his mortgage. The authorities fully sustain the conclusion we have reached. Ferguson v. Glassford, (Mich. ) 35 N. W. Rep. 820; Sheldon v. Holmes, 58 Mich. 138, 24 N. W. Rep. 795; Lewis v. Kirk, 28 Kan. 497; Cornog v. Fuller, 30 lowa, 212; Girardin v. Lampe, 58 Wis. 272, 16 N. W. Rep. 614; Van Keuren v. Corkins, 66 N. Y. 77; Clark, v. Mackin, 95 N. Y. 347. This last case is in point, the purchaser who was protected being a purchaser of a second mortgage, who bought the mortgage as a first lien on the strength of a satisfaction of a prior mortgage. But the case at bar is stronger; for there the satisfaction was executed by the mortgagee after he had assigned the mortgage, the assignment not being recorded, while in the case at bar the owner of the mortgage executed and recorded the satisfaction himself. In Clark v. Mackin the owner of the first lien by his negligence rendered it possible for an innocent person to be deceived by another,