Howe v. Thayer, 49 Iowa 154

Howe v. Thayer

49 Iowa 154

Iowa

1878

Check Treatment

Adams, J.

1. NOTICE : when mortgage is not indexed. The purchaser was not bound to look beyond the’index. Noyes v. Horr, 13 Iowa, 570. The only question is as to whether the name of the mortgagor was so indexed as to impart constructive notice of the mortgage. To many persons examining the record it might occur that the. name of William EL Freeman was written by mistake for William H. Furman, but it would not necessarily, and we could not say that an examiner would be guilty of negligence to whom it should not occur. We think, then, that the plaintiff, did not have constructive notice of the mortgage.

Of course, if the plaintiff had actual knowledge, that would be sufficient. Some doubt has existed in our minds as to whether the petition sufficiently shows that the plaintiff did not have actual knowledge. It is not so carefully drawn in this respect as it might have been. But no argument is made by the appellee to suggest to us that this point was made in the court below, or that the demurrer was sustained upon this ground. It appears to us, therefore, that if we should hold that the demurrer was properly sustained we might do the plaintiff injustice. We think, therefore, that the case should be remanded, and if any doubt exists as to whether actual knowledge is sufficiently denied the court should direct, on motion, that the petition be made more specific in this respect.

Reversed.