32 Ill. 363 | Ill. | 1863
delivered the opinion of the Court:
Our statute settles the question in this case, without cavil or controversy. Which deed was first handed to the recorder, or whether any instructions were given at the time the deeds were left for record, is uncertain from the oral testimony, but whether so or not, the statute itself, and the policy of the recording law, give the deed first filed and first recorded the preference. The twenty-third section of our statute, concerning conveyances, is this: “ All deeds and mortgages, and other instruments of writing which are required to be recorded, shall take effect and be in force from and after the time of filing the same for record, 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, until the same shall be filed for record.” In the absence of proof to the contrary, the presumption is, that the deeds were filed for record in the order in which they were handed to the recorder, as the law made it his duty to do, and upon this presumption, the purchasers of the several classes of bonds secured by these deeds had a right to act. The trustee in these cases, is not the true purchaser and to be protected by the recording laws, but the purchasers of the bonds are the true purchasers. It was their right and their duty to examine the records of these deeds, and there they found that the deed securing the $1,000 bonds was first recorded, and by our recording laws was entitled to a preference, and upon this law they could securely repose in purchasing this class of bonds, knowing that the law gave them a preference; and so too, the purchasers of the other bonds were in duty bound to examine the same record, by which they were told that these bonds were secured by a second lien upon the premises, and that they must be postponed until the bonds secured by the deed first recorded were all paid. If they took the assurance of the seller, that these bonds were secured by a first lien, that was their own folly. -To make good that assurance, would be a fraud upon the purchasers of the first bonds, who had a right to rely upon the law and the record, which declare that they are entitled to a first lien.
The decree of the court below was correct, and must be affirmed.
Decree affirmed.