Statement of case. notice is a legal inference from established facts. (Birdsall v. Russell, 29 N. Y. 220; Claflin v. Lenheim, 66 id. 301; Bennett v. Buchan, 76 id. 386; Code Civ. Pro., $$ 1631, 1671; Webster v. Van Steenburg, 46 Barb. 211.) At the commencement of this action the plaintiff's mortgage was not a lien upon the premises in question. (Brown v. Johnston, 7 Abb. N. C. 188; Kortright v. Cady, 91 N. Y. 343; Peck v. Minot, 3 Abb. Ct. of App. 465; Coles v. Appleby, 87 N. Y. 114, 119; Smith v. Kidd, 68 id. 130.) The equities in this equitable action are all in favor of the University of Rochester. (Fisk v. Potter, 2 Keyes, 64, 75; Parish v. Wheeler, 22 N. Y. 494, 508; Mayor, etc., v. Draper, 23 Barb. 425, 429; Briggs v. Easterly, 62 id. 51; Jervis v. Smith, 7 Abb. Pr. 217, 222; Voorhees v. Seymour, 26 Barb. 569, 583; Spraights v. Hawley, 39 N. Y. 441, 448; Moore v. Met. Nat. Bk., 55 id. 41, 47.) By his acts Mr. Constant became estopped from claiming under this mortgage against the university. (Blair v. Wait, 69 N. Y. 113; Viele v. Judson, 82 id. 32, 40; Fireman's Ins. Co. v. Lawrence, 14 Johns. 55.) John E. Parsons for respondents. When a lawyer has been put by his client in possession of a bond, mortgage and satisfaction piece, this gives to him the power; and where the mortgagor does actually pay the amount of the mortgage to the lawyer, may imply authority to accept payment. It does not, however, imply any general authority from the client; the authority is limited and applies only to the particular transaction, or, at the most, to other transactions which are similar in character. (Smith v. Kidd, 68 N. Y. 130; Williams v. Walker, 2 Sandf. 325.) Authority which results from a course of conduct on the part of the agent, which has been approved or acquiesced in by the principal, applies only in cases which are similar in their essential features. (Story on Agency, § 87.) If Deane had both been vested with authority to receive payment of Mr. Constant's mortgage, and had undertaken to exercise the authority, no money was received by him from Opinion of the Court, per PECKHAM, J. the Meehens which could be applied to such payment. Without the receipt by Deane of the amount the mortgage. would stand. (Story on Agency, $$ 98, 99, note, § 104; Sweeting v. Pearce, 7 C. B. [N. S.] 449; Russell v. Bangley, 4 B. & Ald. 395.) If Deane had had full authority to receive payment for Mr. Constant, and even if he had received funds. which he could use to pay Mr. Constant, he could not, without actual payment, treat Mr. Constant's mortgage as paid, so as to clear the mortgaged property in order to enable him to discharge his own obligation to the university by the mortgage which he gave to it. (Story on Agency, § 78; De Bouchout v. Goldsmid, 5 Ves. 211; Parsons v. Webb, 8 Greenl. 38.) The omission by Deane to record Mr. Constant's mortgage gave no priority to the mortgage of the university. (Story on Agency, § 140; Bank of U. S. v. Davis, 2 Hill, 451; The Distilled Spirits, 11 Wall. [U. S.] 356, 366.) The fact that the plaintiff's mortgage was not recorded did not change the character of the action or require any special allegations in the complaint, or justify the dismissal of the complaint. (Drury v. Clark, 16 How, 424; 3 R. S. [7th ed.] 2215, § 1; Robinson v. Wheeler, 25 N. Y. 252; Seymour v. Van Slyck, 8 Wend. 403; Jackson v. Hill, 5 id. 532; People v. Snyder, 41 N. Y. 397; Page v. Waring, 76 id. 463, 469.) PECKHAM, J. In taking the mortgage of January, 1884, we think the university occupied the position of mortgagee for a valuable consideration. It surrendered a prior mortgage, with the accrued interest thereon, and took the mortgage in question. If the university be not chargeable with notice of the prior mortgage to Constant, which was unrecorded, then its own. mortgage is the prior lien as between the two. The first important question arising is, did Deane, who acted in the transaction as the attorney and agent for the university at the time of the execution of the mortgage to the university, have knowledge of the existence of the prior mortgage to Constant, executed in February, 1883, and which he then took as agent for Constant? In other words, is there any proof that he in January, 1884, had that fact present in his mind and recollec Opinion of the Court, per PECKHAM, J. tion, so that it can be said from the evidence that he then had knowledge of its existence as an unpaid, outstanding obligation? The transaction out of which the mortgage to the university arose occurred eleven months subsequent to the transaction out of which the mortgage in suit arose; and the former mortgage was neither a part of the same transaction as the latter, nor had it the least connection therewith. Under the law, as decided by the older cases in England, such fact would have been an absolute defense to the claim that there was any constructive notice to the defendant arising out of notice to its agent, because such notice was in another and entirely separate transaction. In Warrick v. Warrick, decided by Lord Chancellor HARDWICKE in 1745 (3 Atk. 291, 294), that able judge assumed it as unquestioned law that notice to the agent, in order to bind his principle by constructive notice, should be in the same transaction. He said: "This rule ought to be adhered to, otherwise it would make purchasers and mortgagees' title depend altogether on the memory of their counselors and agents, and oblige them to apply to persons of less eminence as counsel, as not being so likely to have notice of for mer transactions." Cases were continually arising subsequent to that case wherein the principle was assumed as the law of England, although the cases did not in their facts absolutely call for a decision on that point. But in Mountford v. Scott (1 Turn. & R. Ch. 274), upon an appeal from a decision of the vice-chancellor, Lord Chancellor ELDON said that the vice-chancellor proceeded upon the notion that notice to a man in one transaction is not to be taken as notice to him in another transaction. The lord chancellor continued: "In that view of the case it might fall to be considered whether one transaction might not follow so close upon the other as to render it impossible to give a man credit for having forgotten it." He further said that he would be unwilling to go so far as to say that if an attorney has notice of a transaction in the morning he shall be held in a court of equity to have forgotten it in the evening; that it must, in all cases, depend upon the circumstances. Opinion of the Court, per PECKHAM, J. In Hargreaves v. Rothwell (1 Keen's Ch. 154), Lord LANGDALE, master of the rolls, held that where one transaction is closely followed by and connected with another, or where it is clear that a previous transaction was present to the mind of the solicitor when engaged in another transaction, there is no ground for a distinction by which the rule, that notice to the solicitor is notice to the client, should be restricted to the same transaction. In Nixon v. Hamilton (2 Dru. & Wal. Irish Ch. 364, decided in 1838), Lord Chancellor PLUNKET adverted to the rule as to the necessity of notice in the same transaction, and stated, if it were notice acquired in the same transaction, necessarily the principal was to be charged with the knowledge of the agent; but if it were notice received by him in another transaction, then such notice was not to affect the principal unless he actually had the knowledge at the time of the second transaction. (See, also, the case of Dresser v. Norwood, decided in the Court of Exchequer Chamber, and reported in 17 Com. Bench [N. S] 466.) This modification of the old English rule is recognized in the comparatively late case of The Distilled Spirits (11 Wall. 356). Mr. Justice BRADLEY, in delivering the opinion of the Supreme Court of the United States, stated that the doctrine in England seems to be established that, if the agent at the time of effecting a purchase has knowledge of any prior lien, trust or fraud affecting the property, no matter when he acquired such knowledge, his principal is affected thereby. If he acquire the knowledge when he effects the purchase, no question can arise as to his having it at that time. If he acquired it previous to the purchase, the presumption that he still retains it and has it present to his mind will depend upon facts and other circumstances. Clear and satisfactory proof that it was so present seems to be the only restriction required by the English rule as now understood. And the learned justice states that the rule, as finally settled by the English court, is, in his judgment, the true one, and is deduced from the best SICKELS-VOL. LXVI. 77 Opinion of the Court, per PECKHAM, J. consideration of the reasons on which it is founded. In this opinion the whole court concurred. Story, in his work on Agency (§ 140), says: "But unless notice of the fact come to the agent while he is concerned for the principal, and in the course of the very transaction, or so near before it that the agent must be presumed to recollect it, it is not notice thereof to the principal. For otherwise the agent might have forgotten it, and then the principal would be affected by his want of memory at the time of undertaking the agency. Notice, therefore, to the agent before the agency is begun, or after it has terminated, will not ordinarily affect the principal." In Bank of the United States v. Davis (2 Hill, 451), it was held that the principal is deemed to have notice of whatever is communicated to his agent while acting as such in a transaction to which the communication relates. And it was held in that case that notice to a bank director or knowledge obtained by him while not engaged officially in the business of the bank would be inoperative as notice to the bank. In Holden v. New York and Erie Bank (72 N. Y. 286), the rule was explained, and it was therein held that where an agency was in its nature continuous and made up of a long series of transactions of the same general character, the knowledge acquired by the agent in one or more of the transactions is to be charged as the knowledge of the principal and will affect the principal in any other transaction in which the agent as such is engaged and in which the knowledge is material. In that case it will be seen, upon reading the very able opinion of FOLGER, Ch. J., that there was no question as to the knowledge of the agent of the various facts, and the only question raised was whether it should be imputed to his various principals in the transactions. In Cragie v. Hadley (99 N. Y. 131), the doctrine that the knowledge of the agent should come to him in the identical transaction was alluded to, and it was held that it was not necessary in all cases that the notice should be thus given, and that notice to an agent of a bank intrusted with the manage |