Sims v. Hammond

Miller, J. I. The decree in this case must be reversed. Teager’s mortgage, under the facts found, is entitled to priority. While it is found that plaintiff’s mortgage was first recorded, it is also found that his assignor ■ — ■ the mortgagee under whom he claims — had actual notice of the defendant’s mortgage. Plaintiff’s mortgage being first recorded would have priority unless his assignor at the time he took his mortgage had actual notice of appellant’s mortgage. English v. Waples, 13 Iowa, 57. The court distinctly finds that he had such notice. It is argued, however, by appellee that appellant’s mortgage being dated two days later than plaintiff’s is not prior in fact. But the finding of facts shows that on the 10th of October, 1868, Hammond bought-the mortgage premises of Jones, from whom he then obtained a deed, and to whom he then, on the 10th, made a mortgage; that Beynolds, the assignor of plaintiff, was present when this deed and mortgage were made, and after [373] ward, on the same day, with knowledge thereof, took the mortgage from Hammond under which he claims. That the deed from Jones to Hammond, and the mortgage by the latter to Jones, were afterward, on account of some mistake, destroyed, and a new deed and new mortgage executed, did not change or alter the rights of the parties. The taking of the second mortgage was no waiver of the first. It was made for the same debt, namely: The balance of the purchase-money for the land, and, under the circumstances, related back to the time of the execution of the first. Burdett v. Clay, 8 B. Mon. 287; Gregory v. Thomas, 80 Wend. 22. The lien attached when the original mortgage was delivered, and will continue, unless released, until the debt is paid. Packard v. Ringman, 11 Iowa, 219; Vannice v. Bergen, 16 id. 555. See, also, Story’s Eq. Pr. 1035 e ; 1 Hilliard on Mort. (3d ed.) 482. The destruction of the first mortgage, and the making of the second, would not operate as a release, unless such was the intention, which is not shown to have been the case, but the contrary clearly appears by the facts found. II. It is insisted, on part of appellee that, though Reynolds had actual notice of the mortgage to Jones, the one now held by appellant, that the plaintiff purchased it in good faith, relying upon the record which showed that the Reynolds’ mortgage was recorded prior to the one to Jones. The assignment of the mortgage by Reynolds to plaintiff was the assignment of a chose in action, and not an interest in lands. The mortgage was a mere chattel interest, and, though assignable, the assignee stands in no better situation than did the mortgagee, his assignor. The plaintiff purchased his mortgage and parted with his money after defendant’s mortgage was recorded, and could, therefore, be in no better situation than his assignor, and could claim no greater or other equities. See English v. Waples, sugpra, which expressly decides this doctrine. The decree of the circuit court will be reversed, and the [374] cause remanded, with, directions to that court to render a decree in accordance with this opinion. Reversed.