The opinion
Heher, J.
(dissenting in part). I dissent from the modification of the judgment to render the reinstated mortgage of the Boardwalk National Bank on the hotel property subject to the lien of plaintiffs’ judgment for the money paid by the incompetent in consummation of the sale.
I know of no principle of the moral jurisdiction of equity to adjudicate the civil rights and regulate the jural relations of individuals that demands this surrender of the priority of the bank’s lien under the preexisting mortgage for the moneys due at the time of the conveyance to Zingale. The subordination of its lien is not justified as a measure to deprive the bank of an advantage obtained in the trans *214 action which in equity and good conscience it ought not to retain.
The judgment proceeds on the hypothesis of the bank’s good faith; and rightly so, for there is no showing of fraud or bad faith. It is said that “the mantle of protection with which the law strives to cloak every lunatic requires the giving to his representative of every security for the return of his money which the circumstances justly permit,” and that even though the bank “had no actual knowledge” of the incompetent’s condition and cannot be charged “with imposition upon or conscious advantage taken of him, nonetheless the bank cannot escape a full share of responsibility for the course of events,” and the right of foreclosure of its reinstated mortgage cannot be allowed “to destroy a valuable security for the complete recovery” of the incompetent’s money. This is predicated upon the finding that the incompetent’s “insanity made him helpless to avoid his predicament,” and the bank “had the information in its file which, sought out and acted upon, would have prevented the predicament.” But this theory lays upon the bank the penalty of a forfeiture of its priority of lien for moneys long since advanced on the faith of the mortgage, even though it acted in complete good faith and without actual knowledge of Zingale’s incompetency. The bank is thereby deprived, not of an advantage it had obtained in the transaction at issue, but of its priority of lien for the moneys loaned to the prior owner on the security of the lands. I am aware of no consideration of equity or justice which demands that the bank forego its priority of lien to insure the recovery of the incompetent’s money, and thus to contribute to the recovery if the security does not yield sufficient to satisfy both liens, merely because it aided in the consummation of the transaction by a mortgage loan and its officers had failed to examine the 'files relating to a prior application for a loan made by Zingale.
As to the claim of the attorney for professional services, I am in accord with the result.
*215 I concur in the opinion otherwise.
Mr. Justice Bueling and Mr. Justice Jacobs join in this dissent.
Heher, Burling and Jacobs, JJ., concurring in part.
For modification — Chief Justice Vanderbilt, and Justices Heher, Olipiiant, Waoheneeld, Burling, Jacobs and Brennan — 7.
Opposed — Fone.