The court having found that, by special agreements between the defendants, Wieck and Kline, and the appellants, the appellants' notes of February 1, and September 10, 1930, were secured by all the terms and conditions of the mortgage of June 11, 1929, it is apparent that appellants did have an equitable first mortgage as to all the amounts thereof. (1 Jones on Mortgages, sec. 164; Barth v. Ely, 85 Mont. 310, 278 P. 1002; Savage Tire Sales Co. v. Stuart, 61 Mont. 524, 203 P. 364; Fergus County v. First State Bank of Hilger, 67 Mont. 1, 213 P. 1114; Scott v. Tuggle, 74 Mont. 476, 241 P. 229, 231; Angus v. Mariner, 85 Mont. 365, 278 P. 996.) Actual Notice Binds Subsequent Mortgagee: A subsequent mortgagee with actual notice or knowledge of a prior unfiled or informal mortgage is bound thereby and does not secure a superior lien. ( Scott v. Tuggle, supra; Fergus County v. First State Bank of Hilger, supra; Chester State Bank v. Minneapolis Threshing Mach. Co., 58 Mont. 44, 190 P. 136; Foorman v. Boland, 59 Mont. 185, 196 P. 147; Treat v. Burns, 216 Cal. 216, 13 P.2d 724; 11 C.J. 454.)
Restatement of Law of Trusts, A.L.I., Section 171. From the foregoing it is clear that where the law places upon the personal representative the mandatory duty of collecting the assets and the debts due the estate, as does Section 733.01, Florida Statutes 1951, F.S.A., the advice of counsel will not relieve him from the exercise of active vigilance in the discharge of this responsibility, for he is bound, as a matter of law, to know his duty in this regard. See In re Belcher's Estate, 129 Misc. 218, 221 N.Y.S. 711; Scott v. Tuggle, 74 Mont. 476, 241 P. 229. The record discloses that the original administrator did nothing toward taking any of the assets of the estate into his possession, although he knew that such assets were in existence in the form of tangible and intangible personal property in the hands of Maggie, her attorney, or the banks.
(Sec. 10062, Rev. Codes 1921.) However, as Jefferson Sharp, as an heir and a personal representative of Anthony M. Sharp, deceased, consented to Flynn's continuing to operate the ranch property in the manner and on the terms agreed upon for the year 1929, and thereafter received from him a portion of the produce of the property, Flynn need not account to the estate for Jefferson Sharp's proportion of the value of the use of the real property. ( Scott v. Tuggle, 74 Mont. 476, 241 P. 229.)