McFarran v. Knox

5 Colo. 217 | Colo. | 1880

Elbert, O. J.

Under the provisions of the statute (Session Laws 1871, section 1, page 169), upon the filing of the abstract of judgment in the office-of the recorder, the judgment of McFarran became a lien upon all the real estate of McGovney, the judgment - debtor. Although repealed, accrued' rights under this act were saved by the act repealing it. Code, pages 162 and 163.

Real estate subject to execution under the provisions of the Revised Statutes, section 1, page 370, included all interest “ of the defendant or any person to his use held or claimed by virtue of any deed, bond, covenant or otherwise, for a conveyance, or as mortgagor of lands in fee, for life or for years.”

It is to be presumed that the legislature used the term real estate in the act of 1874, with reference to this provision, and intended a lien upon whatever real estate there might be a levy.

In this view the judgment of McFari’an, -upon being filed in office of the recorder, became a lien upon McGovney’s interest in the land in dispute as assignee of the bond from Rose, unless such interest passed by virtue of the prior assignment by McGovney to Knox. Nor was this lien affected as between the parties to this suit by the fact that the bond of Rose was unrecorded. Niantic Bank et al. v. Dennis, 37 Ill. 381.

Section 18, R. S. p. Ill, provides that “ all deeds, conveyances, agreements in writing of or affecting title to real estate or any interest therein, and powers of attorney for the conveyance of any real estate or any interest therein, may be recorded in the office of the recorder of the county wherein such real estate is situated, and from and after the filing thereof for record in such office, and not before, such deeds, bonds and agreements in writing shall take effect as to subsequent bona fide purchasers and encumbrancers, by mortgage, judgment or otherwise, not having notice thereof.”

The assignment by the obligee or his assignee of a bond for the conveyance of real estate comes clearly within the provisions of this section, and unless recorded will not take effect as against a subsequent bona fide purchaser or encumbrancer without notice.

Accepting the allegations of the bill as true, the ássignment by McGovney to Knox of the Kose bond was not recorded, and McFarran was a subsequent judgment lienor and purchaser without notice. The bill stated a cause of action, and the demurrer should have been overruled. Ricehart et al. v. McClure et al. 23 Ill. 516; Niantic Bank et al. v. Dennis, supra.

The case of Knox et al. v. McFarran, 4 Col. 397, was an action of ejectment, and the legal title was alone involved.

In so far as that decision can be taken as applying to the equities of McFarran under the registry act above quoted, it must be regarded as modified by this opinion.

The decree of the court below is reversed and the cause remanded.

Reversed.