Elder v. Derby

Mr. Justice Walker delivered the opinion of the Court: Samuel Earp sold and conveyed the premises in controversy, to Wm. Hoggatt, on the 3d day of September, 1875, after the levy of the execution from the Logan circuit court, in favor of the school superintendent and against Earp. Afterwards, on the 22d of April, 1876, Wm. Hoggatt mortgaged the same premises to Elder and G. W. Hoggatt, and this is the mortgage under which appellant claims a prior lien. Neither Earp, Elder, G. W. nor yfm. Hoggatt redeemed from the sheriff’s sale, and when the time for redemption expired, all of their claims were cut off and extinguished, as the lien of the levy and.the filing of the certificate—o-£-levy-were prior to the sale to Wm. Hoggatt, and his mortgage to Elder and G. W. Hoggatt, and was a superior lien to the others, and by the sale and a want of redemption, all these intermediate liens and conveyances were wiped out and extinguished. After the time for redemption had expired, appellant had no claim to a lien on the land. His mortgage was extinguished, and the grantee in the sheriff’s deed, or the school superintendent, holds an absolute title against Earp, Wm. Hoggatt, Elder and G. W. Hoggatt. If, then, appellant has a superior lien, it is by virtue of the covenants in his mortgage and the omission of some duty by the superintendent of schools. Appellant’s mortgage is in the statutory form, which is declared to be equivalent to all of the covenants for title. It then follows that any title that William Hoggatt subsequently acquired, inured to the benefit of appellant, in the same condition Hoggatt received it, and revived appellant’s mortgage on such title. Then what title accrued to appellant by the purchase by Wm. Hoggatt of the superintendent of schools? Appellee does not claim that his mortgage was revived subject to a'lien on the' property for the balance of the purchase money. But appellant claims, that because the mortgage was not executed and delivered at the time the deed was executed by the superintendent of schools, his mortgage was thereby let in as a superior lien; that the school superintendent failed to take a mortgage for a considerable time after he executed and delivered the deed to Wm. Hoggatt, thereby reviving his mortgage. Then, is appellant’s mortgage let in as a superior lien by the superintendent of schools failing to record his mortgage for more than three months after it was executed ? The seizin of Hoggatt was not complete, because his delivery of the mortgage was at precisely the same time that he received the deed from the school superintendent. He was not, therefore, in equity seized of the title in such a manner that his title could inure to appellant under the covenants in his mortgage. The same transaction which invested him with title, divested it and restored it to his grantor. Neither grantor nor grantee intended to vest the title free from incumbrance in the grantee. Nor will equity hold that it was. Appellant’s mortgage was no doubt revived, but subject to the mortgage for the purchaseimoney. The Recording act provides that all deeds, mortgages, etc., “ which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice, and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be so recorded.” It is not claimed that appellant is a subsequent purchaser, but it is admitted that he is a prior purchaser by mortgage, his mortgage bearing date more than a year before his mortgagor purchased the title he now seeks to subject to the satisfaction of his debt. The claim of the school superintendent is for purchase money for this land, whilst that of appellee is for money paid as surety for his mortgagor, secured by a mortgage on a title to this property, which failed, and left him without security until his mortgagor purchased on credit the title to this property. Again, if the recording laws are held operative in such a case as this, by what means could the owner sell, and secure the purchase money by a mortgage, unless it was executed and recorded before the conveyance was made to the purchaser? Otherwise there must be a space of time between the execution of the conveyance and the recording of the mortgage, and no matter how short the period, the doctrine contended for would let in a prior mortgage that was not a lien on the title thus sold and conveyed. Such a construction of the recording laws would render the sale of lands on time, with a mortgage executed back to the vendor, impracticable in many cases. In such a case as this it would virtually be to satisfy appellant’s mortgage by selling the land belonging to the school fund, and to which the mortgagor did not have title. It is true that the superintendent of schools might have given a bond for a conveyance and thus have avoided all question as to priority of lien, but in equity should not this be considered as the same in substance? The vendor did not intend to release the land from a lien for the purchase money, and supposed by taking the mortgage he had effectually secured the lien, and in equity we think he did, and that it should be protected. The decree of the court below must be affirmed. Decree affirmed.