Lyon v. Perry

Per Curiam. Suit to foreclose a mortgage. The mortgaged premises had been purchased by another of the mortgagor, and the purchaser was made a party defendant with the mortgagor. The complaint did not allege that the mortgage had been recorded, nor that the purchaser bought with notice. But these facts were proved without objection on the trial, and the Court found, therefore, that the mortgage was valid against the purchaser. It was objected on the trial that the original mortgage, instead of the recorded copy, should be introduced to prove the contents of the mortgage, but there was no objection to the giving in of the record to show the fact of the mortgage being recorded, and, hence, notice to the purchaser. The record is made by statute original evidence of the contents of the mortgage. 2 R. S. p. 92. Under these circumstances, we think it appears to us that the case has been fairly decided on its merits, and that the judgment must be affirmed. 2 R. S. pp. 123,162, §§ 382, 580. A Steele and II. D. Thompson, for the appellants. H. S. Kelley and R. T. St. John, for the appellees. The judgment is affirmed with 1 per cent, damages and costs.