66 Iowa 747 | Iowa | 1885
The Clark mortgage was executed to the plaintiff Clark’s intestate, Okauncey Clark. A mistake was made in the description of the land intended to be mortgaged. About three years later, the mistake being discovered, Bullard, for the purpose of correcting it, executed another mortgage with the correct description. In the meantime, however, he had executed the Close mortgage to E. J. Close, the plaintiff Close’s testate, and her mortgage had already been recorded.
Without question her mortgage should have priority, unless the mortgagee, E. J. Close, had notice of the original Clark mortgage, and of the intention to execute the same upon the land in controversy. As showing such notice, Clark-relies upon the testimony of Bullard. He also relies upon an exception contained in the covenants in Mrs. Close’s mortgage. She endeavors to meet Clark’s position by saying that the testimony of Bullard should be excluded, for the reason that he is an incompetent witness, under section 3639 of the Code; and, as to the exception contained in the Close mortgage, she says that it neither expressly refers to the Clark mortgage, nor was sufficient to put the morgagee Close ujjon inquiry. As to the competency of Bullard as a witness we need not determine. It seems clear to us that the mortgagee Close was put upon inquiry. The exception referred to is in these words: “Except one mortgage for $1,200.” There was, in fact, no mortgage to any one apparent of record. But the mortgagee Close was notified that Bullard claimed to have executed a mortgage to some one upon the
Affirmed.
