71 Iowa 175 | Iowa | 1887
The mortgages become effective on delivery, and delivery was accomplished when Schmitz delivered them to the recorder. It is immaterial, therefore, which was first executed. Neither of .the mortgagees, when he agreed to accept a mortgage on the property as security for his debt, knew, or had any notice, of the contract between Schmitz and the other. It is therefore not material which of the contracts was first entered into. If one of the mortgages is superior to the other, it must be either because there existed when it was executed some equity in favor of the party to whom it was given which has the effect to give it superiority, or because priority was given to it by the acts of the parties*
I. Is priority given to either by any equity existing at the time of their execution? It is contended that, as defendants surrendered their vendor’s lien on the property for the unpaid purchase money when they accepted-their mortgage, and as Wietor had no prior interest or right in the property, and surrendered nothing when he accepted the mortgage, they should be given priority over him. It is true, perhaps, that defendants, if they had not accepted the mortgage, would have had an equitable lien on the property for the unpaid purchase money, and'that they waived that lien by accepting it. The mortgage created a new and distinct lien on the property. It did not have the effect to continue or preserve the vendor’s lien, but that lien ceased when the parties accepted the .mortgage. The vendor’s. lien arises by
II. Was priority given to either by the acts of the parties? When the mortgagees agreed to accept a mortgage on the property, each expected, no doubt, that he would receive a first mortgage. But neither of them contracted expressly for a first mortgage. What is relied on as creating priority in favor of plaintiff’s mortgage are the acts and purposes of Schmitz at the time of delivery. lie claims to have first delivered that mortgage to the recorder, and that he did that for the purpose of giving it priority over the other. What he did do, as we are satisfied by the evidence, was to take the instruments to the recorder’s office, and there first hand to the recorder the mortgage to Wictor, and immediately thereafter the one to defendants. They were both delivered by substantially the same act. The question as to which has priority cannot be affected by the fact that one instrument was handed over to the officer an instant before the other was passed to him. Neither is the intention with which the act was done important. Schmitz could have given priority to the one by an expression to that effect in the instruments, and perhaps he could have accomplished the same result by an express declaration at the time of delivery. But, clearly, he could not, by his mere secret intention, give character and effect to the instruments.
III. A claim was made by plaintiff that Schmitz subsequently .sold his interest. in the property to defendants, the Wiltgeiis, and that they agreed, as part of the consideration of the purchase, that they would pay her note. But this claim is not established by the evidence. The mistake in the mortgage to defendants, as to the county in which the prop
If plaintiff had been a subsequent mortgagee, a question might have arisen as to whether the record of defendants’ mortgage imparted constructive notice to her. But she was not a subsequent mortgagee. Her rights and interests accrued at the same instant as those of defendants. The mortgages, as we hold, were delivered at the same time, and the rights of the parties could not be affected by any question of notice.
As the liens created by the mortgages accrued at the same instant, neither of the parties has any rights in the property superior to those of the other, and equity will dispose of it for the benefit of both.
So much of the judgment of the distinct court as adjudges that the debt due the defendants shall be first satisfied out of the proceeds of the property will be reversed, and a judgment will be entered directing the application of such proceeds pro rata to the satisfaction of the debts due plaintiff and defendants.
The judgment will be entered either in this or the district court, as the parties may elect.
Reversed.
