Horner v. Warfield

Per Curiam, At the time the mortgage in suit was executed and recorded, Warfield, the mortgagor, held the legal and equitable title to the land covered by the mortgage. As the holder of such title it was entirely competent for him to execute and deliver the mortgage in question and bind the land covered by it as against all other persons. The mortgage was recorded on the day of its execution, and from that day forward the record was notice to all the world of its existence and contents. That notice included all of the present appellants. The mortgage was executed, delivered and recorded on August 13, 1894. While [109] the affidavit of defense does not give the date of the deeds from Warfield to the appellants, it is a necessary inference that their conveyances were subsequent in time to the mortgage in suit," since if they were not, their title would not be affected by the mortgage and there would be no occasion for their present intervention. This being so the only question is whether the facts set out in the affidavit of defense constitute any defense against the mortgage. There is no averment in the affidavit which really questions the consideration of the mortgage. The facts which are set forth in the affidavit as impugning the validity of the mortgage are not sufficient for that purpose. The agreement between the appellants and others, and Warfield, while entirely obligatory and efficacious as between them, cannot of itself affect Horner’s mortgage or his rights under it. The averment that the mortgage was given to secure Longcope’s commission does not impeach its consideration. As to the agreement between Warfield and his creditors, and the letter of Horner expressing the terms upon which he would make further advancements, the affidavit does not allege any compliance with the conditions of the agreement, or with the terms expressed in Horner’s letter. The facts stated in the affidavit may be literally true and yet the plaintiff’s right to recover on the mortgage not be impaired in the least. Judgment affirmed.