¶1 (dissenting). This was an action to foreclose a mortgage, and judgment was ordered in favor of the plaintiff granting the relief demanded in the complaint. There is but one question involved in the appeal. The question'is whether the lien of the plaintiff’s mortgage covered certain lands, of *490 which the railroad corporation, which is made a defendant, was in possession and to which it claimed title free and clear from the mortgage. The courts below have decided against the contention of the railroad.
¶2 The question involved in the appeal arises upon undisputed facts and no question of fact is involved in the case. On the 7th day of December, 1868, George A. Thomas and wife executed a mortgage to Francis E. Gilbert upon a farm in Delaware county to secure the payment of three thousand five hundred dollars. The farm is described as containing one hundred and ninety-five acres. This mortgage was recorded in the clerk’s office of the county on the 17th of December, 1868. On the 12th of November, 1870, Gilbert assigned the mortgage to one Newell and this assignment was recorded on the 9th of March, 1871. On the 12th of February, 1880, Newell having died, his executors assigned the mortgage to Helen B. Eogers, which assignment was recorded February 18,1884. On the oth of May, 1894, Helen B. Eogers assigned the mortgage to the plaintiff and this assignment was recorded May 9th of the same year. This is the history of the plaintiff’s title to the mortgage in question.
¶3 The title of the railroad to a small strip of land that runs through the farm is as follows: On the first day of June, 1887, Thomas and wife, the original mortgagors, conveyed to a railroad, whose rights the defendant railroad in this action subsequently acquired. This conveyance to the railroad was of a portion of the mortgaged premises containing 2.36 acres of land, being a strip of land sixty-six feet wide through the farm! That deed was recorded August 22,1887. It conveyed the land to the grantee named, in fee,- free and clear of all incumbrances. On the 21st of July, 1887, Helen B. Eogers, then the owner of the mortgage in question, executed a release in the form of a quitclaim deed of the premises described in the deed to the railroad company from the lien of the mortgage. Such release was delivered to the railroad company. The Thomas deed to the company and the Eogers release were sent to the clerk’s office for record at the same time, *491 that is, on August 22, 1887. The release was not actually recorded, but remained in the clerk’s office for record from the date last named to the commencement of this action. The consideration named in the Thomas deed to the railroad company was paid. The company went into possession of the land described in the deed under it; fenced the land, constructed a railroad upon it, and thereafter operated such railroad over it, and at all times since the delivery of the deed the railroad company named as 'grantee and its successor, the defendant in this action, have been in possession of the land. This action to foreclose the mortgage was commenced January 8, 1902, and the railroad was made a party defendant. The railroad company answered the complaint and denied that the portion of the mortgaged premises which was in its possession was, at the time of the commencement of the action, subject to the lien of the mortgage, and asserted that, by the Thomas deed, the Rogers release and the actual and open occupation of the land for and as a railroad the land described in such deed and release became and was freed from the lien of the mortgage. This defense presented the only issue for trial and the only question tried in the case. The question is whether, upon these facts, the 2.36 acres in the possession of the railroad should have been included in the judgment of foreclosure, which directed that the same be sold with the rest of the farm. It was virtually held that the deed and release to the railroad above described, and its possession and occupancy of the piece of land was no defense as against the plaintiff’s mortgage.
¶4 The learned counsel for the railroad has argued the question from more than one standpoint, but there is only one proposition asserted in his argument that is necessary to deal with. There is no dispute about the fact that, at the time the plaintiff took the assignment of the mortgage, the railroad was in the actual, open and visible possession of the strip of land which it claims to own, and it is not only admitted but asserted by the learned counsel for the plaintiff that the assignee of a mortgage becomes a purchaser under the Recording Act. An *492 assignment of a mortgage and the satisfaction of a mortgage and the release of a part of the mortgaged premises are conveyances within the meaning of that statute. At common law a mortgage had the effect of vesting the whole title in the mortgagee. Under the law, as it exists in this state, a mortgage is a grant with a defeasance clause and a power of sale in the mortgagee. When the plaintiff was about to buy the mortgage in question he sought to acquire an interest in land, though it was a mortgage interest or such an interest as a mortgage vests in the' person who holds it. Therefore, when the plaintiff took the assignment óf this mortgage he acquired an interest in the farm in question. If he had purchased the farm, I think that all admit that he would be bound by any existing facts that would constitute constructive notice to him of the rights of others, and it is difficult to see why the same principle would not apply when he sought to become the owner of a mortgage ndiich conveyed to him an interest in the farm.
¶5 There is as already stated no dispute whatever about the fact that, at the timo that the plaintiff took the assignment of the mortgage the railroad was in the actual, open and visible possession of that part of the farm which it now claims to own. The right of way of a railroad, inclosed by fences, upon which trains are operated day and night, constitutes an open, visible and notorious claim of right upon its part to the land, upon which its operations are conducted, and the question is whether this situation existing at the time that the plaintiff purchased the mortgage in question, was not constructive notice to him of the right which the company now asserts. We think it was, and while it may be true that distinctions (have been made or sought to be made affecting this principle, yet we think that it is the law of this state. This, we think, will appear from a few citations from cases in this court.
¶6 In Trustees of Union College v. Wheeler (61 N. Y. 88, 98) it is said: “ The effect of the release was to discharge the land of those holding contracts of purchase at the time the mortgage was given. The actual occupancy of the parties as *493 to whose lands the judgment of the Special Term was affirmed, by a residence in dwellings erected thereon and making improvements, was constructive notice to Hott of their rights, and he was chargeable with the consequence thereof, and could not do anything in derogation of those rights or to their prejudice.”
¶7 In Cavalli v. Allen (57 N. Y. 508, 517) it is said : “ It is a very plain proposition of law that a person in the actual possession of real estate gives notice to all the world proposing to deal with it of his legal and equitable rights, and every one deals at his peril if he fails to make due inquiry.”
¶8 In Frear v. Sweet (118 N. Y. 454, 462) it is said: “ Although the deed to Clement Sweet was not recorded until long after it was made, the notice which possession would afford of his rights was furnished by the fact that he went into actual possession of and occupied the five acres from the time he took the conveyance.”
¶9 In Phelan v. Brady (119 N. Y. 587, 591, 592) it is said : “Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world of the existence of any right which-the person in possession is able to establish.”
¶10 It is difficult to see why the same principle does not apply to a person proposing to buy an existing mortgage as to one who proposes to take a mortgage as an original security. The principle asserted in the case last cited was applied in the case of Holland v. Brown (140 N. Y. 344), and again in a more recent case (Cornell v. Maltby, 165 N. Y. 557, 560), where it was said that the open, visible possession and actual occupancy of premises was constructive notice to all the world of the existence of any right which the plaintiff might be able to establish in the mortgaged premises. The same doctrine was laid down in the case of Seymour v. McKinstry (106 N. Y. 230) and in Sanders v. Riedinger (30 App. Div. 277, 284). The principle was thus stated by the Supreme Court of the United States: “ The law is perfectly well settled, both in England and in this country, except perhaps in some of the New *494 England States, that such possession, under apparent claim of ownership, is notice to a purchaser of whatever interest the person actually in possession has in the fee, whether such interest be legal or ' equitable in its nature, and of all facts which the proposed purchaser might have learned by due inquiry.” (Kirby v. Tallmadge, 160 U. S. 379, 383.) The rule was thus stated upon the authority of leading cases upon the subject in that court and as deduced from text writers of high authority. Inasmuch as it is conceded that the assignment of the mortgage conveys an interest in land and is within the scope of the Recording Act it is difficult to see why the principle does not apply with full force to the plaintiff.
¶11 The learned trial court held that the possession and occupation of the railroad and the general situation existing at the time that the plaintiff acquired title to the mortgage was consistent with the lien originally acquired. It may be that plausible reasons can be given for the support of this proposition, but it does not seem to us to be correct. It may be true that, in some cases, railroads have gone into possession and expended large sums of money in the construction and equipment of a road without having acquired good title to the land constituting its right of way, but such cases, if they exist at all, must be in the nature of things quite exceptional. The general and natural conclusion that any reasonable man would arrive at when about to purchase a mortgage on such a piece of property, would be that the railroad had some rights that he ivas bound to take notice of. When the plaintiff purchased the mortgage in question he was chargeable with notice of the situation existing upon the farm upon which he was about to acquire a lien. He found a strip of land fenced in, upon which the railroad had constructed its roadbed and laid down its tracks. He found that a railroad was being operated upon this piece of land and that it had been so operated for many years. Can it be supposed that, as a reasonable man, he could come to the conclusion that the railroad had gone into possession with no title except the Thomas deed, which was on record, leaving an outstanding mortgage *495 to menace its title in the future ? If he was really justified in such a view, it may be that he could assure himself that the situation was not inconsistent with the lien of the mortgage which he was about to purchase. But it does not seem to us that any reasonable man, viewing the situation as it was, could fairly' come to any such conclusion. There was certainly enough in the situation to put the plaintiff upon inquiry and if he was bound to inquire, then he is chargeable with all the knowledge that such an inquiry would furnish. Pursuing such an inquiry he would have found that the mortgage which he was dealing with had been. released by the person who then owned it and that the railroad had a title free and clear from the lien of the mortgage. We think it is a reasonable rule to hold in such cases that the plaintiff was bound to take notice of the situation that existed upon the farm covered by the mortgage and that such a situation was sufficient to put a reasonable man upon inquiry as to the right which the railroad claimed in the land which it had fenced and separated from the farm and constructed a road upon. So we think that the piece of land in the possession of the railroad was improperly included in the judgment of foreclosure and sale. It follows that the judgment should be reversed and a new trial granted, with costs to abide the event.