Christie

Defendant, Dwight Sherwood, executed his note and mortgage to the plaintiff on December 3, 1887, and that mortgage was recorded December 20, 189Ó.

On March 4, 1890, Sherwood executed to the Bank of Lake another note and mortgage on the same lands (and certain other parcels) and this mortgage was recorded May 5, 1890.

Plaintiff’s mortgage is for two thousand dollars, that of the bank for four thousand dollars, and the property mortgaged is insufficient to satisfy both. The court below held that plaintiff’s mortgage, though last recorded, was the first lien on that part of the land described in both mortgages, and judgment was entered accordingly. This appeal is by the bank from the judgment upon the judgment-roll and a statement containing the evidence; and the only question is whether the bank at the time it took its mortgage had notice of the prior mortgage to the plaintiff.

The uncontradicted facts are that the plaintiff, at and prior to the date of his note and mortgage, had three thousand dollars or more on deposit with the Bank of Lake; that Marshall Arnold was then the cashier of said bank, and continued to be such cashier until after the execution of the mortgage to the…