Reidmiller v. Comes

Hart, J., (after stating the facts). Sec. 7381 of Crawford & Moses’ Digest provides that every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before. In the construction of the statute this court has held that, between conflicting mortgages, the one first filed for record will have priority. Mitchell v. Badgett, 33 Ark. 387. This court has also held that, by accepting a mortgage which recites the first mortgage and provides for its payment, the second mortgagee, whose mortgage has been first filed for record, estops himself to deny the existence of said mortgage and the validity of its lien. Clapp Bros. & Co. v. Halliday Bros., 48 Ark. 258, and Rose v. Million, 147 Ark. 530. Counsel for Reidmiller invoke this rule of estoppel in the instant case. We do not think, however, it has any application under the facts presented by the record. The recitation in the caption or heading’ of the Brockington mortgage that it is a second mortgage is far from being a recital that it was made subject to the mortgage on the same property to Reidmiller. Both-mortgages appear to have been executed on the same day and on the same kind of printed form, and it may be that the mortgage to Reidmiller was executed first, but, as we have already seen, under our statute, between conflicting mortgages the one first filed for record will have precedence, in the absence of a recital that it is made subject to another mortgage on the same property. It follows that the decree will be affirmed.