70 Ind. App. 550 | Ind. Ct. App. | 1919
Appellant brought this action against appellees John F. Ward and Marguerite Ward, husband and wife, on two promissory notes of $750 each, executed by said John F. Ward, and secured by a mortgage on certain real estate in Perry county, Indiana. The complaint is in a single
The evidence is contradictory in some particulars, and in others not entirely clear, but there is competent evidence which reasonably tends to establish the following facts: That appellant sold the real estate in question to appellee John F. Ward in August, 1910, for $3,000, bne-half of which was to be paid in cash, and the remainder to be evidenced by notes, secured by a mortgage thereon; that, for the purpose
did not affect appellant’s rights, as the date of a deed or mortgage only furnishes prima facie evidence of the date of its execution, which may be rebutted. Guyer v. Union Trust Co. (1914), 55 Ind. App. 472, 104 N. E. 82. In this case the evidence, outside of the dates which the mortgages in question bear, tends strongly to show that the mortgage of appellee Graves was delivered to, and . accepted by, him, prior to the day on which appellant’s mortgage was delivered to her. It is well settled that instruments, such as deeds and mortgages, become effective from the time of their execution, which includes their delivery to, and acceptance by, the grantee or mortgagee. Hoadley v. Hadley (1874), 48 Ind. 452; Krutsinger v. Brown (1880), 72 Ind. 466; Sims v. Smith (1885), 99 Ind. 469, 50 Am. Rep. 99; John Shillito Co. v. McConnell (1891), 130 Ind. 41, 26 N. E. 832; Mc
But appellant contends that, although the mortgage of appellee Graves may have been executed and became effective prior to her mortgage, nevertheless, it should not have been decreed to be senior thereto. In support of this, she calls our attention to the fact that all of the notes in suit are dated August 27,1910; that her notes mature five years after date, while the note of appellee Graves does not mature until six years after date, and.cites certain decisions of this state which hold that a mortgage given to secure the payment of several notes, payable at different times, must be considered as if there were as many different successive mortgages as there are notes, and the holder of the note first maturing will be considered as having priority, and the holder or holders of the remaining notes will come in in the same order in which said notes mature. It must be apparent, however, that this rule can have no application to a case like the one at bar, where the several notes involved are secured by different mortgages, executed on different dates.
Appellant also cites the doctrine of instantaneous •seizin, which has been applied for the purpose of preserving the priority of a purchase-money mortgage, executed at the time the vendor parts with his title to the real estate covered thereby, as against a mortgage thereon executed by the vendee prior thereto. Again it must be apparent that this doctrine can have
It has also been beld that, when a vendor’s lien has once been waived, it cannot be revived. Mattix v. Weand, supra; Richards, Gdn., v. McPherson, supra; Nutter v. Fouch (1882), 86 Ind. 451; Buffalo, etc., Quarries Co. v. Davis (1910), 45 Ind. App. 116, 90 N. E. 327.
Appellant has also discussed the rule involving the question of presumption of payment arising from the acceptance of a note governed by the law merchant, and also a rule involving the merger of legal and equitable liens, but, as these rules can have no controlling influence on the sole question presented for our determination on this appeal, their consideration is unnecessary. For the reasons stated, we conclude that the court did not err in overruling appellant’s motion for a new trial.
Judgment affirmed.