23 Kan. 98 | Kan. | 1879
The opinion of the court was delivered by
The contest in this case is between one who claims under the lien of an execution levy, and the holder of
Of course, this is but part and parcel of a still broader question, and that is, does the lien of an execution levy extend to only the actual, or does it also reach the apparent, title of the judgment debtor? Is the inquiry restricted to the face of the record, or may it pass to the actual facts? Authorities are not wanting to support either view, and cogent reasons may be adduced in favor of each. On the one hand it may be said with force that if the mortgage lien is adjudged paramount, then the section quoted is practically nullified, and an instrument which the statute declares invalid is pronounced valid; and on the other, that if the levy is adjudged paramount, then the statute which authorizes a levy upon the lands, tenements and hereditaments of the debtor is extended so as to sustain a levy upon lands which are not in fact wholly his.
With much hesitation, and after a long and careful examination of the question in its various relations, we have reached the conclusion that the lien of the mortgage must be adjudged
To a similar effect is the language of the statutes of Massachusetts, Texas, Alabama, and perhaps other states. The state of Ohio is an exception. The language of her statute is (Swan’s Rev. Stat., pp. 310, 311), “That all mortgages executed agreeably to the provisions of this act shall be recorded in the office of the recorder of the county in which such mortgaged premises are situated, and shall take effect from the time the same are recorded.” The force of this language is somewhat similar to that of our statute, and under it the supreme court of Ohio has held the unrecorded mortgage the inferior lien. (White v. Denman, 16 Ohio, 60; Holliday v. Franklin Bank, 16 Ohio, 534; White v. Denman, 1 Ohio St. 110; Bloom v. Noggle, 4 Ohio St. 45.) It must be conceded that these cases are authority against the view we have taken. Yet it may be remarked that the statute attempts to make the record a part of the delivery and execution ot the mortgage. It is like the rule requiring the mortgage to be in writing. It must be recorded before it is a mortgage. But by our statute the unrecorded mortgage is valid, valid inter partes under all circumstances, and valid as to every one having actual notice. The record is not essential to its existence. But in Missouri we find the very language of our statute. Not merely is the section we have quoted identical with that of Missouri — the sections immediately preceding are alike. As they had been in force in Missouri for many years before they were enacted in. this state,
“The words of the forty-first section, in declaring that the deposit of the deed for record shall impart notice to all persons of the contents thereof, are explained, in my opinion, by the subsequent words of the same section, which provide that all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice. The obvious meaning of the whole section is, that filing a deed for record imparts notice to all persons who shall subsequently become interested in the title, either as purchasers or mortgagees.
“The forty-second section, in declaring that no such instrument in writing shall be valid, except between the parties thereto and such as shall have actual notice thereof, until deposited for record, is not designed to allpw any person to dispute the validity of an unrecorded deed, unless he is interested in the title under the same grantor. A mere trespasser cannot dispute it. There must be a title for value, under the grantor, to admit of the question being raised.
“Now it will be seen that a creditor, as such, is nowhere alluded to in the statute as a person who is affected by notice, or to whom notice is to be given, and it would plainly be useless to give actual notice of an unrecorded deed to a creditor with a view to affect the person who might afterward become a purchaser under the judgment of the creditors.
“A creditor, by obtaining a judgment, acquires a lien that binds the estate of the defendant against any subsequent act of his, but he acquires no interest or estate in the property. A purchaser of the property under the judgment of the creditor is the first person who acquires an interest in the property, and is the person who is to be affected by notice, either actual or constructive. If he has notice before he assumes the character of a purchaser, he invests his money in a*112 speculation against the deed, and the judgment creditor takes the money upon his judgment. The recording of the deed before the purchase is notice to him.
“I exclude creditors altogether from the above statute, believing that they were never intended to be embraced within its provisions.”
See also Valentine v. Havener, 20 Mo. 133; Stillwell v. McDonald, 39 Mo. 282; Potter v. McDowell, 43 Mo. 93; Reed v. Ownsby, 44 Mo. 204; Sappington v. Oeschli, 49 Mo. 244; Black v. Long, 60 Mo. 181; in all of which the ruling in Davis v. Ownsby was affirmed.
The only other state in which we have found or been referred to a statute exactly like ours is Iowa, in which at one time was in force a section like the one first quoted in this opinion. Under that in Brown v. Tuthill, 1 G. Greene, 189, it was held that a “ lien by attachment'will hold against a prior unrecorded deed.” The section of the statute was soon after modified, and in a case arising under the new law, (Norton v. Williams, 9 Iowa 159,) the court says: “We incline to the opinion that, under the statute of 1843, the case of Brown v. Tuthill is against the current of the decisions.”
The weight of authority, therefore, upon the exact statute before us, is decidedly with the conclusion we have reached. Without extending this opinion, we close by saying that our conclusion gives full and exact force to the statute which creates and defines a judgment lien; that it is in accord with the prior adjudications of this court; that it sustains and enforces the real equities of all parties; and that it is upheld by the decided' weight of authority elsewhere upon the exact question.
The judgment will be affirmed.