Tousley v. Tousley

Ranney, J. It is somewhat difficult to discover the “ important and difficult questions” which weighed upon the minds of the district court, in ordering this case to be reserved. There seems to be but one which we could justify ourselves in taking any space in the reports to consider, and that chiefly for the purpose of explaining a difference between this case and other decisions of this court, which the learned counsel for the defendants seem to have overlooked. It is true, that the notes intended to be secured by this mortgage are very inaccurately described. If error, instead of accuracy, had been the object of the draftsman, he could hardly have committed more. But still it is very [85] easy to see how the most material of them occurred, and none of them amount to any thing more than clerical inaccuracies. That the mortgage was given to secure an honest debt, and that the notes produced are those intended to be described in it, is not denied. We find the mortgage to have been properly executed and recorded long before the judgments were recovered. That these mistakes could be made available to defeat its lien, as between the parties, will hardly be pretended. And if not between the parties, how are the judgment creditors of the mortgagor to stand in any better situation ? Before the recovery of their judgments, the debtor had conveyed the legal title, and had nothing left but an equity of redemption upon which the lien of the judgments could attach. In pursuing this lien, they take his place, stand in his shoes, and can relieve the land from the incumbrance upon no better terms than he could. Indeed, as between these parties, it is wholly immaterial how many mistakes were made in recording the mortgage. The necessity of recording a mortgage, to give it effect as against subsequent incumbrances, arises alone from the statute; and all the decisions that have been made, have involved the construction of the statute. It is unnecessary to refer to them in detail. They simply amount to this: — that, as against third persons afterwards acquiring an interest in, or lien upon the property, a mortgage, until delivered to the recorder for record, is wholly inoperative to convey or incumber the land, either at law or in equity. Some of the earlier cases speak of this delivery to the recorder, as a part of the execution of the instrument; but whether that can be properly said or not, it is certain, that the statute has made it an indispensable condition to the taking effect of the mortgage, as against such third persons. The statute expressly provides when it shall have its full effect against everybody — it “ shall take effect and have preference from the time the same is delivered to the recorder of the proper county, to be by him entered on record.” When this is done the statute is satisfied, and the land is effectually conveyed and incumbered. All judgment liens thereafter attaching are subject to the mortgage, and operate only upon the equity of redemption. [86] The distinction between such a case and those in which the judgment lien has been preferred, is most apparent. In those cases, either because the mortgage had not been delivered to the recorder, or because it was defectively executed and not entitled to record, the judgment lien attached before it had taken effect as against the creditor; while in this, the judgment was not rendered until after the mortgage had taken effect, by a full compliance with the terms of the statute. Yery different considerations might be presented in a contest with a subsequent bona fide purchaser, in view of the provisions of the eighth section of the act of 1831. It was in reference to these considerations, that the cases of Lessee of Jennings v. Ward, 20 O. R. 261, and Brown v. Kirkman, 1 Ohio St. R. 116, were decided. In the first of these cases, the recorder had mistaken the name of the grantor, in making the record of the elder deed; and the junior deed had been taken by a bona fide purchaser, without actual notice of the existence of the other. The court held the first deed not duly recorded; and, as a purchaser can only be charged with constructive notice from the record, when the record, if examined, would have furnished actual notice, allowed the title of the subsequent purchaser to prevail. This case -was not overruled, as counsel suppose, in deciding Brown v. Kirkman; nor is the latter in any way, or to any extent, inconsistent with it. That was the case of two mortgages. The elder was properly executed and delivered to the recorder, who made a mistake, in the description of the land, in placing it upon record; but the junior mortgagee had actual notice of its existence, independent of the record. The court held, that the lien of the mortgage, under the statute, was perfected by its delivery to the recorder, and that the junior mortgagee, having notice in fact of its existence, did not occupy the position of a subsequent bona fide purchaser. While the record, in both cases, was held to be insufficient to affect a subsequent purchaser with constructive notice, the important difference between them (and one that might furnish something of an excuse for a different decision) was, that in the one case the purchaser had no notice and was [87] defrauded, and in the other had notice and was not defrauded. The one was, therefore, protected, and the other not. But this question could never arise between a mortgagee and a subsequent judgment creditor, for the plain reason, that such a creditor is not a purchaser, nor entitled to the privileges of that position. So far as the statute goes, in giving him a preference over mortgages not perfected by a delivery to the recorder, his rights are absolute, but for every thing else, he is remitted to general principles; and upon general principles, it is very clear, that he acquires a lien only upon the interests of his debtor, and is bound to yield to every claim that could be successfully asserted against him. This mortgage, having taken effect by a delivery to the recorder, and in fact, as we think, having been duly recorded before the recovery of the defendants’ judgments, and notwithstanding the errors of description, being a good security against the mort gagor, is, in our opinion, equally available against the judgment creditors. In respect to other questions presented, it is qnly necessary to say, that we find nothing in any of them to defeat or postpone the lien of the mortgage. A decree will be entered giving the mortgage priority, and ordering a sale of the property.