121 Ind. 83 | Ind. | 1889
— The appellees, Sarah Decker, Elizabeth McHenry, Lydia Woodhouse and Thankful McHenry, were the owners and in possession of the real estate in controversy on the 1st day of February, 1881, and had been the owners for a long time prior to that date. Witmeyer, another of the appellees, desired to buy the land, and the terms of sale were agreed upon by him and the owners of the land. He did not have the money to make the cash payment, and he borrowed it from George Brower. After Witmeyer ob
The note executed to George Brower by Witmeyer was not negotiable by the law merchant, and the case is, therefore, not affected by any question as to the rights of a bona fide endorsee of commercial paper.
The appellant’s assignor knew, as is fairly inferable from the evidence, that the mortgage to the vendors of the land was executed to secure the purchase-money, and knew, also, before he loaned the money to Witmeyer that it was borrowed for the purpose of making the cash payment, so that if he had remained the owner of the note there could be no possible doubt as to which of the two mortgages has priority.
This case can not be disposed of by the application of the rules which obtain where the controversy is confined to the mortgagor and mortgagee, as appellant’s counsel assume, for here the rights of the vendors of the land intervene, and their high equities can not be disregarded. If it be conceded that Witmeyer, at the time he obtained the loan, agreed with George Brower to execute a mortgage to him, that agreement could not affect the rights of the vendors who were then the owners of the land. It is quite clear that an agreement by one who intends to buy land to execute a mortgage to one from whom he borrows money can not prejudice the rights of the vendors under a mortgage executed to secure the unpaid purchase-money. As against them it is
The rule declared in such cases as Jones v. Parker, 51 Wis. 218, Carey v. Boyle, 53 Wis. 574, Dwenger v. Branigan, 95 Ind. 221, Fleece v. O’Rear, 83 Ind. 200, and Johns v Sewell, 33 Ind. 1, can not be given effect in such a case as this. Where money is advanced to buy land the party advancing it may, in some instances, be entitled to be subrogated to the rights of the vendor, but this can never be so where it would result in defeating the vendor’s lien for the unpaid purchase-money. 1 Jones Mort. (4th ed.), section 464.
The lien of a vendor for unpaid purchase-money is favored by the courts; it is an equity which the courts will protect against all persons except such as occupy the position of a bona fide purchaser. The appellant’s assignor did not .occupy that position, for the note was executed for an antecedent debt. Busenbarke v. Ramey, 53 Ind. 499. If the,, appellant occupies no better position than his assignor, then, of course, he must fail, but he does occupy a better position, for he bought the note and paid value for it. An assignee who buys and pays full value for a note and mortgage is protected by the record against equities and liens of which he had no actual or constructive notice. Jackson v. Reid, 30 Kan. 10; Mott v. Clark, 9 Pa. St. 399; Trull v. Bigelow, 16 Mass. 406; Somes v. Brewer, 2 Pick. 184. If he had bought the mortgage before that of the appellees was recorded, his mortgage would probably be entitled to priority, but he did
Judgment affirmed.