Appeals of City National Bank

Mr. Justice Mercur, delivered the opinion of the court, These two appeals were argued together. The errors assigned in each are the same. The main contention arises under the first assignment. It involves the question of precedence between claimants under two separate mortgages on the same land, both executed at one time, and recorded on the same day. It appears that Hall owned the land, and by articles of agreement sold it to Nichols. Before the latter had fully paid therefor, he sold to Porter and Wonderly. To avoid the expense of an intermediate conveyance, it was agreed that Hall should convey directly to Porter and Wonderly, and they should execute a mortgage to him to secure residue of the purchase-money due him; and also execute to Nichols another mortgage to secure the payment of the remainder of the sum which they had agreed to pay for the whole title. In pursuance of this agreement, the deed and mortgages were made of one date, and they were executed, delivered and recorded on the same day. Thus, substantially and in effect, the mortgage to Hall was for the purchase-money due him on the legal title, and the mortgage to Nichols was for the value of his equitable interest in the land. The mortgage to Hall having thus been recorded on the day of its execution and delivery, and on the day of the delivery of the deed, is clearly entitled to a preference over the other mortgage. Hall was guilty of no laches whereby his prior lien was defeated. It is not essentially necessary for the mortgage to show on its face, that it -was given for purchase-money, in order to give it a preferred lien. The fact that it was so given was known to mortgagors and mortgagees. Nichols could not assert any equity to defeat the superior right of the mortgage given to Hall. [168] The record showed the deed from Hall, and the mortgage to him, on the same land; both to bear the same date, and that they were both recorded on the same day. These facts were sufficient to put a' purchaser of the mortgage from Nichols on inquiry. Hue inquiry would readily have resulted in full notice of the preferred lien of the Hall mortgage. The learned judge was therefore right in holding that the mortgage given to Hall for the purchase-money created a preferred lien. The fifth assignment involves the existence of a fact which does not appear to have been questioned in the court below. No exception was there filed against the right to collect more than the sum for which the(bond was originally pledged in 1867 or 1868. The right to collect the whole bond, having there passed unquestioned, we will not now assume that right not to exist. Besides, it is shown, that in 1876, Nichols, formally in writing, did assign to Porter the whole bond and a proportionate part of the mortgage, and Porter assigned them to the appellee. No further consideration of the other questions is necessary. They have been sufficiently discusssed in the opinion just filed in Watson’s Appeal from the same decree. Decrees affirmed, and the appeals dismissed at the costs of each appellant in its respective appeal.