Allison v. Manzke

118 Wis. 11 | Wis. | 1903

Cassoday, C. J.

It is conceded that the two Hahn mortgages were executed six days prior to the date of the Herman mortgage. It is conceded that the Herman mortgage was re: corded one day prior to the recording of either of the Hahn mortgages. It is also conceded that each of the three mortgages covers and includes the same premises. The question to be determined is whether, by virtue of the statutes, the liens of the Hahn mortgages are subject and subordinate to the lien of the Herman mortgage by reason of the last-named mortgage having been first recorded. The statute declares that:

“Every conveyance of real estate within this state hereafter made . . . which shall not be recorded, as provided by law, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall first be duly recorded.” Sec. 2241, Stats. 1898.

There can be no question but that the term “conveyance,” as used in that section, must be construed to embrace a mortgage, and that the term “purchaser,” as so used, must be construed to embrace a mortgagee. Sec. 2242, Id. Herman was certainly a “purchaser” subsequent to Hahn, and bis mortgage or “conveyance” was first “duly recorded,” within the meaning of the statute. Id. The question, therefore, is reduced to this: Was Herman sucb “purchaser” in good faith, and for a valuable consideration? It is undisputed that he paid the full consideration of the mortgage. The appellants claim that he was not a purchaser in good faith within the meaning of the statute. In support of such contention it is said that at the time of the execution of the Herman mortgage the title to the mortgaged premises was in one Clara I). Harrington, from whom Frank Kosecki held a contract forits purchase. Of course, the same was true when the Hahn mortgages were executed six days before. The deed from Clara I). Farrington'to Frank Kosecki was dated September 6, 1894, and acknowledged September 8, 1894, but was not recorded until September 12, 1894. It recited a consideration of $1,450. It appears that a part of the loan from Herman was used to pay Clara D. Farrington the balance due her on the land contract. After the deed from Farring-ton to Frank Kosecki had been recorded, and assurances had been given as to the perfection of the title, and Herman had examined the premises, and on the morning of September 13, 1894, Herman gave his check to Louis Auer & Sons,- through whom the loan was negotiated, for $2,000, and received from them the note and mortgage, and he immediately put the mortgage on record, and two days afterwards gave his check for the balance. Manifestly, the papers were held by the persons so negotiating the loan from September 7, 1894, when the application therefor was made, until September 13, 1894, for the purpose of perfecting the title. There is nothing to impeach the good faith of Herman in the transaction. The evidence is ample to justify the tidal court in holding that Herman was a “purchaser in good faith and for a valuable consideration,” within the meaning of the statute. The mere fact that Herman made no inquiry as to whether Kosecki had given any mortgage on the premises before receiving his deed from Farrington is without significance. Nor is the fact that' that deed recited a consideration of $1,450. Evidently Herman regarded the lands as good security, and the findings of the trial court seem to indicate that the lands were of the value of $3,500 when the judgment was entered. The next day after the Herman mortgage was so recorded, the two Hahn mortgages were recorded. ’ The statute quoted in effect declares that those two mortgages were “void, as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate,” as it is found to be true in respect to Herman. Had Herman retained his mortgage, and foreclosed the same, and Hahn had retained the two mortgages so taken by him, there could have been no reasonable doubt but that the lien of the Hahn mortgages would have been subject and subordinate to the Herman mortgage.

2. But counsel for the appellants seem to think that the superior lien of the Herman mortgage had become subordinate to the lien of the Hahn mortgages, because the assignments of the Hahn mortgages had been recorded before the assignment of the Herman mortgage to the plaintiff. In support of such contention counsel seem to rely on Butler v. Bank of Mazeppa, 94 Wis. 351, 68 N. W. 998. It is true that in that case it was held that “an assignee of a mortgage is a ‘purchaser,’ and the assignment is a ‘conveyance,’ within the meaning of” the sections of the statutes cited; but it was also expressly held in that case that, “in order that the as-signee’s lien may take precedence over another mortgage, which, although a prior lien, was not first recorded, the assignment must have been recorded prior to the recording of the latter mortgage.” In that case the mortgages “were apparently contemporaneous in execution,” but Eowler (one of the mortgagees) “knew when he took his mortgage” that “the plaintiff’s mortgage was simply an extension pro tanto of his previously existing purchase-money mortgage,” and he “voluntarily accepted it with the knowledge that it was intended to be, as it was in fact, a subsequent lien.” That case was quite similar in principle to the more recent case in this court, Trompczynski v. Struck, 105 Wis. 437, 440, 441, 81 N. W. 650. Neither of those cases sustains the proposition for which counsel for the appellants contend. It is elementary that “the assignee of a chose in action stands exactly in the shoes of his assignor. He succeeds to all of his rights and privileges, but acquires no greater right than his assignor had in the thing assigned.” 2 Am. & Eng. Eney. of Law (2d ed.) 1079; Kinney v. Kruse, 28 Wis. 183, 190; Parmalee v. Wheeler, 32 Wis. 429. We must hold that the recording of the assignments from Hahn gave to the holders thereof, respectively, no superior lien upon the mortgaged premises, as against Herman, and the plaintiff as his assignee, than that possessed by Hahn.

By the Court. — The judgment of the circuit court is affirmed.