Butler v. Bank of Mazeppa, 94 Wis. 351

Butler v. Bank of Mazeppa

94 Wis. 351 | Wis. | 1896

WiNslow, J.

There can be no doubt but that, as between the plaintiff and Eowler, the plaintiff’s mortgage was the prior lien, notwithstanding the fact that they were apparently contemporaneous in execution, and the further fact that Fowler’s mortgage was first recorded. This results from the fact that. the plaintiff’s mortgage was simply an extensionyw tanto of his previously existing purchase-money mortgage, which fact Fowler knew when he took his mortgage, arid voluntarily accepted it with the knowledge that it was intended to be, as it was in fact, a subsequent lien. Jones v. Parker, 51 Wis. 218. Such being the situation as-between plaintiff and Fowler, the original mortgagees, the question is whether, by reason of any subsequent facts, the relative priority of the two mortgages has been reversed. It appears that, about three weeks after the execution and recording of the two mortgages, the defendant bank purchased the Fowler note and mortgage for value, before due; and we shall assume that the purchase was in good faith, without notice of the plaintiff’s priority of lien, although *355tbe sufficiency of the evidence upon, that point may be seriously questioned. Upon these facts, in connection with the further fact that the Fowler mortgage was first recorded, the claim of the bank to a prior lien is predicated.

It is not claimed that there are any facts amounting to an estoppel as against plaintiff, nor could such a claim be 'Successfully maintained. He made no representations to induce the purchase by the bank. He put his mortgage on record promptly, in ignorance of the fact that the Fowler mortgage existed; and, when he learned of its existence and its priority of record, he endeavored at once to procure correction of the record, so as to show the true state of the facts. There was no act or omission on his part by which either the bank or Fowler was misled. Greene v. Warnick, 64 N. Y. 220.

Nor can the bank claim any better lien than Fowler had by reason of the fact that the note was a negotiable note, and that it was purchased for value before due. The law which protects the Iona fide purchaser of such paper, before due, from latent defenses or equities, has no application, because there are no such defenses or equities interposed. There is no controversy raised as to the bank’s title to the note,- its amount, or its right to recover the whole of it. The sole controversy is as to priority of the liens created on the real estate by the mortgages, with which liens the notes have nothing to do, save to measure the amount thereof, and as to the amount there is no dispute. So the question must depend simply upon a construction of the registry law. If the bank has gained priority of lien over the plaintiff’s mortgage, it must be by virtue of the law governing the registration of conveyances. This law is contained in secs. 2241 and 2242, H. S. 1878, and provides, in substance, that every conveyance of real estate which shall not be recorded as provided by law shall be void as against any subsequent purchaser thereof in good faith whose conveyance shall he *356first duly recorded. It further provides .that the term “ conveyance ” shall be construed to embrace every written instrument by which any estate or interest in real estate.is created, aliened, mortgaged, or assigned (with' certain exceptions unnecessary to be stated), and that the term “ purchaser ” shall be construed to embrace every person to whom any estate or interest in real estate shall be conveyed for a valuable consideration, and also every assignee of a mortgage or lease or other conditional estate. Prom a careful perusal of this law, it is very plain that a purchaser of a mortgage is included within the term “purchaser” as used in the law, and that an assignment of a mortgage is included within the term “ conveyance.” To the same effect are the authorities. Westbrook v. Gleason, 79 N. Y. 23; Brewster v. Carnes, 103 N. Y. 556. The bank, then, was a subsequent purchaser in good faith, within the meaning of the recording act. Rut, in order to be protected against a prior conveyance or mortgage, it must be something more than a subsequent purchaser in good faith. Its conveyance must first be duly recorded. Its conveyance, as we have seen, was the assignment of the mortgage, and it was not recorded till long after the plaintiff’s mortgage; hence it is in no way protected. This was the doctrine finally adopted, after great deliberation and argument, in the case of Fallass v. Pierce, 30 Wis. 443. In that case it was said that the subsequent purchaser, in order to be protected under our statute, “must not only be a subsequent bona fide purchaser for value, but must also have his deed first duly recorded. Roth conditions of the statute must be complied with.” Id. 458. In that case, also, the doctrine stated in Ely v. Wilcox, 20 Wis. 529, to the effect that the registry of a deed is notice only to those who claim through or under the grantor by whom the deed .was executed, or, in other words, that the statute applies only to successive purchasers from the same vendor, was expressly overruled; — and it was dis*357tinctly held that the statute applies to any and every subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, and is not limited to successive purchasers from the same seller, and that the purchaser must have his conveyance first duly recorded in order to take advantage of the terms of the statute. The doctrine of this case has stood unquestioned for nearly a quarter of a century, and it is decisive of the case before us. The bank did not have its conveyance (i. e. its assignment) recorded until long after the plaintiff’s mortgage; hence the recording act furnishes it no protection. To the same effect are numerous decisions in New York, under a similar statute. Decker v. Boice, 83 N. Y. 215.

By the Oowrt.— Judgment affirmed.

MaRshall, J., took no part.