First Nat. Bank of Tama City v. Hayzlett

40 Iowa 659 | Iowa | 1875

Hay, J.:

It is now the settled law of this State that an attachment or judgment lien does not take precedence over a prior unrecorded deed or mortgage, of which the creditor had no notice. Norton, Jewett & Busby v. Williams, 9 Iowa, 528; Evans v. McGlasson, 18 Ib., 150; Hayes v. Thode, Ib., 51; Bell v. Evans, 10 Ib., 353; Welton v. Tizzard, 15 Ib., 495; Churchill v. Morse, 23 Ib., 229; Hayes v. Allen, 27 Ib., 208.

It is claimed by appellant, however, that this case involves a construction of section 3243, Revision of 1860, which in substance provides that no levy of attachment on real estate shall be notice to a subsequent bona ficle vendee or incum-brancer, unless the sheriff shall enter the fact of the levy in the incumbrance book It is claimed that this implies the converse, that the attachment shall be notice to all parties acquiring rights as purchasers or incumbrancers, after the proper entry in the incumbrance book is made. We concede that this deduction is correct. Appellant argues that if Bradshaw, instead of a mortgage, had received an absolute deed, and put it in his pocket, as he did the mortgage, and in the meantime either of these defendants had purchased the premises in good faith, received a deed, and put the same, on record, no one would doubt his legal right to hold the same. This we also concede, and we might have conceded more if more had been claimed. But the trouble is that these principles do not apply to this case. Bradshaw took his mortgage before the entry of the levy in the ineumbran'ce book, and hence he is not affected by that entry. The authorities cited above all hold that an attachment or j udgment creditor is not a purchaser, and it avails him nothing to admit that if he had been a bona fide purchaser without notice, he would have taken precedence over a prior unrecorded deed or mortgage.

The judgment is

Affirmed.