Rowell v. Williams

Cassoday, J. Section 2241, R. S., and section 25, eh. 86, R. S. 185S, from which it was taken, only protect subsequent purchasers in good faith for a valuable consideration, and not those who purchase with the knowledge of an outstanding unrecorded conveyance. In such case, to purchase in good faith is to purchase without knowledge of the outstanding incumbrance, or any information sufficient to put the purchaser upon inquiry. Mueller v. Brigham, 53 Wis., 173. There can be no question, that the term “conveyance,” as used in that section, includes a mortgage. Section 2242, R. S., and section 35, ch. 86, R. S. 1S58, from which it was taken. Here one of the plaintiffs testified, in effect, that Mr. Davies told him, at the time he gave this mortgage to their firm, that the $300 note and mortgage (given in 1854, on the 120 acres in section 24 to Williams, and to take up which the Williams mortgage of 1858 was given) were paid; that there was another mortgage of about $400 held by Mr. or Mrs. Williams; that he supposed he was taking the mortgage to the plaintiffs “on his (Davies’) land, and that there was on it a mortgage to Mrs. Williams of $400,” and also the Dawes mortgage of $500; that Davies did not tell him that the Williams mortgage of the whole place,” but said “ it was on .the place.” He also testi-about $400 “covered the entire farm, ” or that “it was upon fied that he had no knowledge from Davies or Mrs. Williams, or anybody else, that there was a mistake in the Williams' .mortgage until they found it out from the description, when [640] they got the abstract, about the time they were talking of foreclosing their mortgage. With these admissions on the part of the plaintiffs, and the testimony of Mr. Davies, to the effect that when he was about to give the mortgage Hr. Rowell asked him if his land was clear, and he told him there were three mortgages on the land,— one of $300 to Mr. Williams, and another of $470 to Mr. Williams, ¿nd one which he had given the week before to Mr. Dawes for $500,— and the other evidence in the case, it is very apparent that the circuit court was justified in holding that the plaintiffs took the mortgage with the express understanding that it was subsequent and subject to the Williams mortgage and the Dawes 'mortgage. This being so, and assuming the Williams mortgage to be a valid subsisting mortgage, the fact of any irregularity in the ‘recording of the mortgage becomes wholly immaterial, since it is the object of the recording acts to protect purchasers and mortgagees for value without notice, and not to protect them when they have notice. For the purposes of this case, therefore, we may assume that the record of the Williams mortgage was not such as to give constructive notice to a bona fide purchaser in good faith. Nor is it material that the plaintiffs, at the time of taking their mort gage, did not know the precise amount due on the Williams mortgage, assuming such to be - the fact, since they did have information sufficient to put them upon inquiry, and herce they must be presumed to have known what they might readily have ascertained. It would seem, from the evidence, that the. defect in the description of the land in the Williams mortgage was not known to the plaintiffs until they began talking about foreclosing, in 1876, and then they obtained a release of the former Williams mortgage, in which the land was accurately described, apparently for the purpose of preventing its enforcement in case the supposed lien of the second Williams mortgage should [641] be avoided. The mistake consisted .in omitting the word “ north.” The mortgage recited that it contained 120 acres of land, and it is very evident, from reading the description of the 80 and 40 together, that either the word u north ” or “ south ” had-been omitted by mistake, otherwise the 40 would include a portion of the 80. Of course, the land to which Davies held title was susceptible of proof, and, as he could only mortgage his own land, and not the lands of others, there was no difficulty in making certain by evidence what was otherwise uncertain. The mortgage was therefore good between the parties, arid as to them and the plaintiffs, who took with the notice mentioned, it must be deemed to cover the entire 120 acres in section 24, notwithstanding the mistake referred to. Nor do we think the Williams mortgage invalid by reason of the failure to recite a consideration. It was under seal, and recited that it was given to secure a promissory note of the amount named, executed by the mortgagor, which, of itself, would show a consideration; besides, it here appears that it was given in payment of the former note and mortgage held by Williams. The omission of the name of the county, in the venue of the acknowledgment, may have been such an irregularity as tó prevent the record from being constructive notice to bona fide• purchasers or mortgagees without notice; but the view we have taken of the case makes this immaterial, since the plaintiffs are not such mortgagees, but took their mortgage with actual notice that the Williams mortgage in question then covered the farm of the mortgagor. By the Court.— The judgment of the circuit court is affirmed.