20 Iowa 355 | Iowa | 1866
But it is said that his title relates back to the commencement of the proceedings to enforce the vendor’s lien; that this was August 5,1846, prior to the time of filing the mortgage for record; or if not the 5th, then the 7th, the date of handing the notice to the sheriff for service ; and that this was before the mortgage was filed for record or third persons had notice of its existence. Now, as already intimated, if defendant had, prior to the time of having received this constructive notice, surrendered any right, parted with his money, or exchanged his relation to the property or the parties, he might be in a position to be prejudiced, and might equitably claim priority over the mortgage lien. But when he bought and invested his money he knew the county had a mortgage dated and acknowledged before White commenced his suit, and though recorded after, it was a valid security before. In other words, he knew that, as between the parties, the filing for record was not essential to the validity of the instrument; that this filing was only necessary as to third persons having no actual notice. This notice he had, as did all other persons, long before the decree in White’s case, and long before his purchase. It is not, in principle, unlike the case of an attachment after the making of the deed by the debtor; the deed being filed for record, however, before a purchase under the judgment rendered in such attachment proceedings. And that the deed, in such a case, would have priority under our recording laws, is well settled in this State. Norton, Jewett & Busby v. Williams, 9 Iowa, 529; Bell v. Evans, 10 Id., 353; Seevers v.
In this connection we must not lose sight of the fact that though White sold the land to Bradshaw long before the mortgage was made, there was no notice of any lien in his favor before the 5th of August, i'f before the 7th, and whether the one or other, is not in our opinion material ; for assuming it to be the 5th, the mortgage should still have priority. It may well admit of doubt whether plaintiff would not be entitled to this priority by advancing the money, as was done, indisputably, long before notice of this lien. If not, then assuming that the evidence fails to show when the mortgage was actually delivered, what is the presumption as to the time of delivery ? We answer, the time of its execution. It is not a question as against a third person, whether the date of a deed is to be accepted as presumptive evidence of the time of its execution; nor is there any question as to whether there was in fact a
Affirmed.