#### GOODYEAR v. COOK.

(Filed September 9, 1902.)

MORTGAGES — Trusts—Notice.

A trustee in a deed of trust, applying the proceeds as provided in the registered deed, is not chargeable with notice that the ' deed was improperly registered, because as attorney he had twelve years before drawn the deed of trust.

Actio.N by J. M. Goodyear against Chas-. A. Cook, beard by Judge Francis D. Winston, at September Term, 1901, of (be Superior Court of Warren County. From a judgment for the plaintiff, the defendant-appealed.

No counsel for the plaintiff.

B. £?. ■Orcen and F. Ii. Bushes, for‘the defendant.

Clark, J.

Upon the facts agreed, it appears that the defendant, as attorney at law, on 1st April, 1886, drew a deed in trust (which was not then signed nor delivered), to secure two notes, one. for $175, to Benjamin Goodyear, and the other for $370, payable to Rebecca Goodyear. The party .for whom the paper was drawn took it away, and on 10th June, 1886, it was recorded without any knowledge or agency on the part of the defendant. The matter passed out of the mind of the defendant till about the month' of February, 1898, said Rebecca demanded that the defendant, as trustee, should sell the land. The defendant asked for the trust deed and was referred to the registry of the same and directed to sell by that. As recorded, the trust deed named the defendant as trustee, and required him “to pay in full the note to Rebecca Goodyear, and the surplus, if any,” to the grantor. The property was duly advertised and sold 21st March, 1898, when it was bought by said Rebecca at the price of $310, which, being less than her debt, the amount of her bid was *4credited otu ber note and tbe, land was conveyed to ber. Tbe plaintiff did not become bolder or owner of tbe $175 note till 1901, and neither Benjamin Goodyear, nor anyone else, prior to that time, gave tbe trustee notice of tbe $17 5 claim.

Tbe following averment of tbe defendant is admitted by tbe plaintiff, i. e.: “Tbe defendant bad no knowledge or information whatsoever, nor any reasons to suspect or believe that there was any defect or error in the registration of said deed, and, in executing said powers, he was acting as agent for tbe parties to said deed, and used due care and caution in the discharge of' said trust.”

Upon the facts admitted, judgment should have been entered for tbe defendant. The mere fact that tbe defendant bad once drawn a trust deed for tb'e grantor, requiring payment of tbe $175 note out of proceeds of sale, as well as payment of tbe $370 note, which alone is required by the deed, as recorded, was no notice to him that tbe deed was improperly registered — certainly not after tbe admission that be did not have any “information or knowledge whatsoever, nor any reasons to suspect or believe that there was any defect or error in tbe registration of said deed of trust.” Besides, tbe laches of tbe plaintiff and those under whom be claims, has been so gross as to deprive them of any standing in a Court of Equity, if there bad been at any time any merit in bis contention.

Reversed.