Marvin v. Marvin. upon some trust for the benefit of Le Grand himself. All these facts, I think, afford a sufficient reason for denying summary relief by a motion in the original partition suit, and show that the various questions likely to arise should be presented and passed upon in a more formal manner, especially if the rights of third parties appear to have intervened, and their titles are to be brought in question. It seems to me that an action, somewhat in the nature of a bill of review, would be the proper remedy. In such a suit the further alienation of the property partitioned to Le Grand might, if necessary, be restrained by a notice of lis pendens, or an injunction order. In the case of Dugan v. Hollins (supra), which was a suit in equity, where some property remained to be distributed, the court ordered that no further distribution should be made until payment of the sum equitably required to equalize the partition. And in the case of Sawyers v. Cator (supra), the court says, in substance: "The remedy is by bill in chancery, either by setting aside the partition as being founded in mistake, if it can be done without injustice, and if not, then by a decree of pecuniary compensation." The case was a bill in equity, filed for contribution to restore equality after an eviction. An action would be essentially in the nature of a bill of review, and after examining and disposing of all questions, whether of fact or law, bearing upon the equitable rights of the parties, a decree might be made for a repartition, if the situation of the premises should be such as to render that course practicable without injustice; if not, then such other equitable relief might be given as the situation of the parties and property might seem to require (see Dacre v. Gorges, 2 Sim. & St. 455). Entertaining the view, therefore, that the plaintiff probably has an equitable right to recompense for the property he has lost by reason of the paramount title, Mutual Life Ins. Co. v. Dake. I am of the opinion that, at all events, in this case, the remedy is to be sought, not by motion in the partition suit, but by a new action. The motion must, therefore, be denied, without prejudice to any action to be hereafter instituted to obtain relief in the premises. As it is a new question, no costs are allowed to either party on the motion. The order to be entered is: Motion denied without costs to either party, and without prejudice to any suit to be instituted by the plaintiffs, or either of them, or their heirs, to obtain relief in consequence of a failure of title to a part of the land set off to the plaintiffs, or any of them, by partition in this suit. The decision was acquiesced in, and an action was brought. MUTUAL LIFE INSURANCE CO. v. DAKE. N. Y. Supreme Court, Fourth Department; Special Term, June, 1876. RECORDING DEEDS.-NOTICE. OMISSION FROM INDEX. Under the New York recording acts the index is not an essential part of the record for the purposes of notice; and a mortgage duly recorded, though not indexed, is constructive notice, even against a bona fide purchaser or mortgagee who dealt on the faith of finding no incumbrance in the index. The holder of such unindexed mortgage is a necessary party to a foreclosure of a duly recorded and indexed prior mortgage. A foreclosure of a duly recorded prior mortgage without making the holder of such unindexed mortgage a party, is as to him void, and on foreclosure by the latter of his mortgage the plaintiff in the former foreclosure is not entitled of right to priority for his costs. Mutual Life Ins. Co. v. Dake. Trial by the court. The Mutual Life Insurance Company of New York, brought this action against Jabez W. Dake, William Teeple and others, to foreclose a mortgage, which was executed by the defendants, Teeple and his wife, to the plaintiffs, on the 4th of June, 1870, upon lands in Livingston county, to secure the payment of the sum of $2,000, with interest. On the 7th of December, 1870, the plaintiffs left the mortgage at the office of the clerk of Livingston county, for record, and paid the fees for recording it. On the same day, the clerk duly transcribed the mortgage, in full, in the proper record book in his office, and indorsed on it his certificate of recording, in due form, and returned the mortgage, so indorsed, to the plaintiffs. The clerk omitted, however, by mistake, to index the mortgage, and the plaintiffs were ignorant of the omission until September, 1875, when the omission having been discovered, the mortgage was indexed by the clerk. The defendant, Jabez W. Dake, is the assignee of two mortgages executed by Teeple, on the same premises, one prior to the plaintiff's mortgage, dated April 6, 1868, for $600, and interest, given to one Nichols; the other, executed to one Balty, on the 14th of March, 1874, duly recorded and indexed on that day, and assigned by Balty to Dake, on the 10th of March, 1875. The mortgage to Balty was given to secure the payment of the sum of $1,400, loaned by Balty to Teeple at the time of the execution of the mortgage. Before making the loan, and in view of it, Balty procured from the clerk a certificate of search as to the title to the premises and incumbrances thereon. The certifi cate did not show the existence of the plaintiff's mortgage, and Balty had no actual notice or knowledge of it till after he assigned his mortgage to Dake. The assignment to Dake was for a valuable consideration, Mutual Life Ins. Co. v. Dake. and was duly recorded on 16th of March, 1875. Before taking it, Dake saw the certificate of search which Balty had, and also procured for himself a certificate of search from the clerk, which, as well as the one in Balty's hands, did not show the existence of the plaintiff's mortgage, and Dake had no actual notice or knowledge of such mortgage, till the 6th of December, 1875. On the 21st of June, 1875, Dake, by action in this court, obtained a judgment of foreclosure and sale on the Nichols mortgage, for the sum of $734.65, principal and interest, and $202.93 costs. On the same day, in a separate action, he entered a similar judgment on the Balty mortgage, for $1,476.20 principal and interest, and $176.63 costs. By reason of Dake's want of knowledge of the mortgage when he commenced those actions, the plaintiffs were not made parties to either of them. Pursuant to the judgment in the latter suit, the premises were sold on the 1st of December, 1875, and were struck off to the defendant Dake, for the sum of $2,330 subject to the judgment obtained by him on the Nichols mortgage. Having heard of the plaintiffs' mortgage, a few days after the sale, Dake did not take a deed, and has not proceeded in the action since the sale. The plaintiffs allege that the lien of the Balty mortgage accrued subsequently to the lien of their own; they admit that the lien of the Nichols mortgage is superior to theirs, and they insist that as they were not made parties to either of the foreclosure suits, those mortgages are unforeclosed as to them. They demand a judgment of foreclosure and sale upon their mortgage, and that the proceeds be applied first to the payment of the amount due upon the Nichols mortgage, with the costs of the foreclosure thereof, and next to the payment of the amount due upon the plaintiffs' mortgage and costs of this suit, Mutual Life Ins. Co. v. Dake. so far as they will pay the same, and that Teeple be adjudged to pay any deficiency. The defendant Dake insists that the omission to index the plaintiff's mortgage rendered the record a nullity as a notice of the plaintiffs' lien, and that thereby, the plaintiffs failed to acquire a lien as against the Balty mortgage, and that the latter is entitled to priority. D. C. Robinson, for the plaintiffs. H. M. Dake, for the defendant. in JAMES C. SMITH, J. [After stating the above facts.] —The claim of the defendant, just above stated, presents the principal question, if not the only one, the case. It is a very important question, not only to the parties, but to all persons who may have occasion to record conveyances in the clerk's office, or to search for conveyances recorded by others. It is not a little surprising to find that a question so likely to come up frequently has not arisen in any reported case in this State. I suppose the usual practice in searching the records in the clerk's office, is to consult the index, and to rely upon it. That is obvivously the most convenient way; and if the index is full and accurate, it saves the necessity of going through the records themselves. But if the index is imperfect, and, misleads the searcher, as appears to have been the case here, who is to suffer the party who duly transcribed his mortgage in the record book, or the party who, relying on the index, omitted to look at the record? The question is to be answered by determining whether the index is an essential part of the record—that is to say, whether it is necessary to the completeness and efficiency of the record as a notice to after purchasers. Whatever is essential to the validity of the record as a notice, is made so by positive law, and a solution of the question is to be found in an examination of the |