New v. Bame. premises, and Bevins must pay the additional costs incurred by the complainant in consequence of his putting in an answer. Decree accordingly. NEW v. BAME. An answer stated the execution and delivery of an assignment in trust for creditors, and referring to the instrument, averred that a copy of it was set forth in a schedule annexed, to which the defendant referred as a part of his answer. The answer then stated the recording of the instrument on the day of its date, and mentioned the book in which it was recorded. The schedule contained the assignment at length, acknowledged before a commissioner of deeds. Held, that the deed might be read at the hearing, under these allegations. THIS was a judgment creditor's suit, which was heard on the pleadings and proofs. The answer, among other things, stated that on, &c., the defendant executed and delivered to W. A. D., an assignment of all his real and personal property, except such as by law was exempt from execution, in trust for the payment of his debts ratably, &c.; "as by reference to the said assignment will more fully and at large appear, a copy whereof is hereunto annexed, marked A., and to which this defendant begs leave to refer; and that the same may be accepted and taken as a part of his answer; and which said assignment was accepted by the said W. A. D., and on the day of its date, was recorded in the office of the clerk of the county of Columbia, in book F. F. of deeds; as by the certificate of the clerk thereon indorsed, will also appear." The complainant objected to the reading of this deed in evidence, under the statement in the answer. The other matters involved, were of no general interest. J. C. Newkirk, for the complainant. K. Miller, for the defendant. King v. McVickar. THE ASSISTANT VICE-CHANCELLOR, decided that the assignment was so far set out, or distinctly referred to, in the answer, as to enable the defendant to read it at the hearing, under the seventy-fifth rule of the court. That the answer and schedule together, stated it as a deed duly acknowledged and recorded. A decree was made for the complainant. KING and others v. McVICKAR, J. L. LAWRENCE, administrator, &c., and others. J. L. LAWRENCE, administrator, &c., v. KING and others. A mortgagor, and one to whom he had subsequently conveyed part of the lots mortgaged, subject to a portion of the debt, applied to a banker to advance money to satisfy the mortgagee. The banker made the advance, on such grantee of part of the lots, agreeing to take an assignment of the mortgage for his benefit and security, as against the lots remaining in the mortgagor; half the sum requisite to satisfy the mortgagee, being furnished at the time, ostensibly by the grantee. Payment was made to the mortgagee, who assigned the mortgage to the grantee; and he soon after cancelled it of record, without the assent or knowledge of the banker. Held, that the transfer for the benefit of the latter was valid, and the subsequent discharge of the same was void, and that he could re-instate the mortgage, and foreclose it against the lots still owned by the mortgagor, and against a second mortgagee of the same, whose lien was prior to the cancelment, but subsequent to the first mentioned mortgage. After the first mortgage was cancelled, the banker to secure his advance, obtained from the grantee who cancelled it, a mortgage on other lands of some value; and subsequently the grantee gave to him another mortgage on those lands, to secure debts due to the banker as trustee. After this he conveyed the lands to the banker in fee, in trust for several persons. It appeared that as between the original mortgagor and such grantee, the latter was liable in respect of his lots formerly subject to the mortgage, to pay a part of such advance. Held, that on the banker's re-instating and enforcing the original mortgage, the second mortgagee stood in the place of a surety for such grantee to the extent of his liability to make good the advance, and was entitled to that extent, to the benefit of the subsequent security taken for the advance, by the banker, from the grantee. Held also, that such equity of the second mortgagee, could not be enforced against the beneficiaries under the conveyance to the banker in trust, until they were made parties to the suit. King v. McVickar. A cross bill in behalf of the second mortgagee to enforce such an equity, will be sustained. Where there is to be a long controversy as to the extent of the equity of a second mortgagee, who is entitled to a subsidiary security obtained by the first mortgagee; the civil law rule of subrogation will be adopted, and a decree for the satisfaction of the first mortgage made at once, instead of requiring the holder thereof in the first instance to resort to his ancillary security. The decree will at the same time, provide for the second mortgagee's right of subrogation to such security. Parties acquiring liens or interests subsequent to the recording of a mortgage, must notify the same to the mortgagee, if they wish to influence or control his action in respect of the lands mortgaged. The recording of a mortgage is not notice of its existence to a prior mortgagee. A party setting up a prior legal right in an answer, is not bound to deny notice of a subsequent lien or interest, unless such notice be distinctly alleged against him. The rule is different, where one is resisting a prior title, on the ground that he purchased in good faith, without notice. An assignment of a mortgage to one who has taken a conveyance of a part of the mortgaged premises from the mortgagor, will not operate as a merger in respect of the premises still owned by the latter. Oct. 21, 22, 23, 1845; February 4, 1846. THE first cause was a bill filed October 7th, 1842, by James G. King, Edward Prime, Samuel Ward and Denning Duer, transacting business under the name and firm of Prime, Ward & King; against Benjamin Vickar and Isaphene, his wife, John L. Lawrence, administrator, &c., of Isaac Lawrence, deceased, and William Beach Lawrence. All of the defendants suffered the bill to be taken as confessed, except J. L. Lawrence, administrator, &c., who put in an answer, setting up against the claim of the complainants, various rights and equities founded upon the right of McVickar to compel W. B. Lawrence to relieve the lands in question from such claim, and insisting that those lands were not liable. In May, 1843, J. L. Lawrence, administrator, &c., commenced the second suit above entitled, by filing a cross bill against the complainants in the first suit, together with McVickar and wife, and W. B. Lawrence and Esther R., his wife. Answers to this bill were put in by W. B. Lawrence, and by Prime, Ward and King. Replications were filed to the answers in both suits, and testimony was taken. W. B. Lawrence was examined as a witVOL. III. 25 King v. McVickar. ness for the complainants in the first suit, and B. McVickar for the complainant in the cross suit. The causes were heard together on the pleadings and proofs. It is not deemed necessary to state the pleadings at large; and instead of inserting the testimony, the report of the case contains the material facts as ascertained by the court, which were as follows: On the 16th of October, 1838, McVickar was seised in fee of a parcel of land in the city of New York, extending from Eighth to Ninth streets, and from the Sixth Avenue, eastwardly 227 feet, six inches, except a lot, 75 feet by 23 feet, fronting on Sixth Avenue, at the corner of Ninth street. The property was known as lots numbers 5, 7, 9, 11, 13 and 15, Eighth street, numbers 321, 323, 325, 327, 329 and 331, on Ninth street, and 100, 102, 104, 106, 108, 110, 112 and 114, Sixth Avenue. In all this property, W. B. Lawrence claimed, and had an interest as equitable owner, in common with McVickar. Previously and on the first day of July, 1836, McVickar had executed his bond for $50,000, and he and his wife had executed their mortgage to secure the bond, to W. B. Lawrence, on the twelve lots on Eighth and Ninth streets above described. On the 12th day of July, 1836, W. B. Lawrence assigned the bond and mortgage to The American Life Insurance and Trust Company. The mortgage and assignment were recorded July 15, 1836. On the 23d of May, 1837, McVickar and wife executed a mortgage to the same American Trust Company, on the four lots on Sixth Avenue next above Eighth street, and known as numbers 100, 102, 104 and 106. This mortgage was recorded in July, 1837, and was given as further security for the debt secured by the former mortgage. On the 16th of October, 1838, McVickar executed his bond, and he and his wife executed their mortgage to the same Trust Company, for the payment of $55,000, on all the lots above mentioned. The mortgage was recorded October 18th, 1838. The sum advanced on this bond and mortgage, was only $45,089 90; and on the 7th of March, 1839, the Trust Company by reason of the deficiency, released from all their mortgages, the lot designated as seven, Eighth street. On the first of September, 1839, King v. McVickar. the Trust Company released and discharged number 9, Eighth street, in like manner. On the 12th of February, 1840, McVickar and wife executed a mortgage to Isaac Lawrence, upon all the before mentioned premises and other lands, to secure him for all advances and liabilities by him made to or incurred for McVickar, and to indemnify him against the same. The mortgage was recorded three days after its date. At the period of these suits, the premises mortgaged were insufficient to satisfy those liabilities and advances, and McVickar was unable to pay any deficiency. On the same 12th of February, W. B. Lawrence and wife executed a mortgage for the like purpose to Isaac Lawrence, which was recorded the same day, and conveyed with other real estate, all his right, title and interest, in the lots herein before described. In 1842, the premises subject to this mortgage, were entirely inadequate to pay the amount claimed to be due upon it; and the mortgagor was not able to pay any deficiency. On the 1st day of June, 1840, the American Trust Company discharged from their mortgages, the four lots, 114 Sixth Avenue, and 327, 329 and 331, Ninth street, for the consideration of $28,250, and received for that sum in the aggregate, four mortgages of McVickar and wife, one on each of the lots released, These mortgages were recorded in September, 1840, and in the same month, were assigned by the American Trust Company to The New York Insurance Company, to secure $20,000. Isaac Lawrence at the same time executed an instrument, giving to these four mortgages priority over his mortgage executed by McVickar. At this time there remained due to American Trust Company, including their interest in the four mortgages held by The New York Insurance Company, about $68,089 90. On the 8th day of March, 1841, Isaac Lawrence released to McVickar lot 331 Ninth street, from the lien of his mortgage. The release was recorded the same month. On the 15th day of May, 1841, McVickar and W. B. Lawrence made a division between themselves, of the premises still subject to the three American Trust Company mortgages first mentioned, and apportioned upon each lot, a share of the amount due on |