Wixon v. Wixon

Mr. Justice Allen, sitting for Mr. Chief Justice Teller, delivered the opinion of the court. On February 21, 1921, S. D. Wixon was the owner in fee of the northwest quarter of section 4, township 11, *393 range 52, in Logan county. On that date he sold the land to A. J. Wixon, taking back a purchase money mortgage in the sum of $4,000. The mortgage instrument, by mistake, described the land as being in section 7, instead of section 4. With such incorrect description, it was recorded on March 19, 1921. In January, 1922, The Divide.Lumber & Coal Company obtained a judgment against the grantee of the deed, A. J. Wixon, and filed a transcript of the judgment with the county clerk and recorder. Thereafter S. D. Wixon brought this action to reform the mortgage so as to have it describe the land intended to be mortgaged, and also to foreclose the mortgage as reformed. The Lumber & Coal Company sought in this action to have its judgment lien made superior to the lien of the plaintiff’s mortgage, and was successful in the court below. The mortgagee, S. D. Wixon, brings the cause here for review. The question to be determined is which one of the two liens above mentioned has a priority over the other. The plaintiff in error relies upon Emery v. Ward, 68 Colo. 373, 191 Pac. 99, in which it was held that a purchase money mortgage is superior to all other liens or claims against the mortgagor. If the mortgage had properly described the property, the case above cited would be controlling here. But the situation is otherwise. So far as section 4 is concerned, the mortgage had the effect only of an unrecorded mortgage, because it did not describe or mention any land as being in section 4. The mortgage was good as between the mortgagor and the mortgagee and could be reformed as to them, but not as to the holder of a judgment lien accruing against the mortgagor after the transfer of the real estate in question. The circumstances of this case are analogous to the facts appearing in Davis v. Lutkiewiez, 72 Iowa, 254, 33 N. W. 670, where it was held that a purchase money mortgage which, like the mortgage involved in the instant case, failed to describe the tract of land intended to be mortgaged, was subordinate to the lien of a subsequent mortgage. Follow *394 ing the reasoning of that case, it is to be observed that in the instant case the judgment of The Divide Lumber & Coal Company became a lien upon section 4, owned by A. J. Wixon, the judgment debtor, when the transcript was filed. The judgment lien was then superior to the mortgage lien because there was no constructive notice by the record that section 4 was mortgaged, because the mortgage, due to a mistake in the description, failed to mention section 4. The subsequent correction of the mortgage could not affect the priority of the judgment lien. In accord with the case last cited, is Thorpe v. Helmer, 275 Ill. 86, 113 N. E. 954, holding that an unrecorded purchase money mortgage, or a mortgage of record which fails to describe the property intended to be mortgaged, does not take precedence over a subsequent judgment, or judgment lien upon such property. Under the authorities above cited, plaintiff’s purchase money mortgage had no effect as against third persons, so far as section 4 is concerned, until it was corrected so as to cover said section, and when corrected it had only the effect of a mortgage given as of the time of correction, so far as the rights of third persons are involved. As against the judgment creditor it was then the same as any other mortgage recorded after the inception of the judgment lien. The situation being as above described, and under the circumstances, the purchase money mortgage being in the same position as any other mortgage, the remaining facts of the case are practically identical with those appearing in Wedman v. Carpenter, 65 Colo. 63, 173 Pac. 57, where it was held that the lien of a judgment stands upon the same footing as that of a purchaser in good faith, and that as between an innocent purchaser for value, and one who has accepted a mortgage containing a false description, the former is preferred. That case is controlling here. For the reasons there given, as well as those herein stated, the judgment of the trial court is right, and' it is therefore affirmed. Mr. Justice Burke and Mr. Justice Campbell concur.