72 Iowa 254 | Iowa | 1887
In the month of May, 1883, the plaintiff was the owner of forty acres- of land in Audubon county. He made a sale of it to the defendant Lutkiewiez, and conveyed the same to him by deed. At the same time, Lutkie-wiez executed a mortgage to the plaintiff to secure the payment of part of the purchase-money. It was intended that this mortgage should be upon the land sold, but by a mistake the mortgage was made upon another forty-acre tract. The mortgage was recorded soon after it was made. The deed was not recorded for some time afterwards. The defendants John S. Davis & Sons held"some promissory notes upon Lutkiewiez ; and after the sale and conveyance, and before the deed was recorded, Lutkiewiez made a mortgage to them on the land purchased of plaintiff to secure the amount due on said notes. The original notes were renewed, and the time of payment extended. Davis & Sons’ mortgage was recorded soon after it was made. After this the plaintiff discovered the mistake in his mortgage, and he procured Lutkiewiez to correct the same by alteration, and by indorsement thereon ; and, as thus altered, the mortgage was again recorded. The deed to Lutkiewiez was not then recorded. There is no evidence as to which of the parties was in the actual possession of the land at any time prior to the commencement of the suit.
In determining the rights of the parties-, it is important to first consider the effect of the mistake and subsequent correction of the plaintiff’s mortgage. When the defendants
It is claimed by counsel for the plaintiff that there is no evidence that the mortgage of Davis & Sons was for a full consideration. It is true, there is no direct proof that Lut-kiewiez was actually indebted to them in the full amount of the notes executed by him to them. But the plaintiff made no issue upon this question. He did not make the charge in his petition that the mortgage to Davis & Sons was fraudulent as being without consideration. The petition charges that Davis & Sons took their mortgage with notice that the
Much stress is placed upon the fact that the deed made by the plaintiff was unrecorded when Davis & Sons took their mortgage. It is said that the absence of the record was sufficient to put the defendants upon inquiry as to the rights of the plaintiff. We do not think that the fact that the deed was not recorded should have this effect. An unrecorded deed is valid as to the whole world except a subsequent purchaser for a valuable consideration without notice. Surely, the deed itself is better evidence of title in the grantee than
We have carefully examined the case of Flynt v. Arnold, 2 Metc., 619, and other cases cited by counsel for appellee, and we do not think that they adopt a rule which would make the plaintiff’s mortgage a prior lien. It is true that in the case cited it is said that one who purchases land from a person holding an unrecorded deed purchases at his peril. But this proposition cannot be sustained, because, under our registry laws, the holder of an unrecorded deed has a complete title except as against a subsequent good-faith purchaser without notice.
We think the decree of the court below must be
REVERSED.