52 Neb. 447 | Neb. | 1897
This is an appeal from a decree of the district court of Hall county. The undisputed facts are briefly as follows: On November 20, 1893, A. H. Baker owned certain real estate in Hall county. On that date was begun a term of the district court of said county. During the term a judgment was rendered against Baker in favor of the Security National Bank. The judgment was not by confession and the action in which it was rendered was not commenced at or during the term at which the judgment •was rendered. On December 2, 1893, Baker mortgaged certain real estate in said Hall county to A. W. Ocobock, which mortgage was duly filed in the office of the register of deeds of said county on said date. Subsequent to the filing of Ocobock’s mortgage the bank released from the lien of its judgment a large amount of real estate sit
During the month of December, 1898, one Vest was the cashier and managing officer of the bank. During that month there was a daily publication, or “daily report,” circulated among subscribers in the city of Grand Island, where the bank was situated, of the transactions occurring the previous day in the office of the register of deeds, so far as the same affected conveyances and incumbrances of real estate. This daily publication, or report, gave the names of the grantors and mortgagors, grantees and mortgagees, the character and date of the instrument, the consideration for the conveyance, and a description of-the real estate incumbered. The cashier of ' the bank was a subscriber to this publication. The fact of the making of the mortgage by Baker and wife to Ocobock was set out in the publication, and this publication the cashier of the bank saw and read prior to the date of releasing the bank’s judgment lien on the lands of Baker not covered by the Ocobock mortgagee. Ocobock brought suit to foreclose his mortgage and made the bank a party defendant. The bank filed a cross-petition setting up its judgment and claimed a first lien upon the real estate described in Ocobock’s mortgage. The latter claimed that, by reason of the bank’s having released
1. The judgment of the bank not being by confession, and having been rendered in an action commenced prior to the beginning of the term at which the judgment wa.s rendered, became a lien upon the lands of Baker situate in Hall county from and after the first day of the term of court at which the judgment was rendered, namely, November 20, 1893, and such a lien was a superior lien to the mortgage of Ocobock filed December 2, 1893, though the mortgage was filed before the date the judgment was actually rendered. (See Code of Civil Procedure, sec. 477; Norfolk State Bank v. Murphy, 40 Neb., 735.)
2. It is a general rule that if a creditor having a choice of two funds should, contrary to equity, so exercise his legal rights as to exhaust that fund to which only other creditors can resort, then those other creditors will be placed by a court of equity in his situation so far as he has applied their fund to the satisfaction of his claim. (Chief Justice Marshall in Alston v. Munford, 1 Brock. [U. S.], 279. See, also, Cheesebrough v. Millard, 1 Johns. Ch. [N. Y.], 409; Iglehart v. Crane, 42 Ill., 261; Hosmer v. Campbell, 98 Ill., 572.)
3. The record of Ocobock’s mortgage was not constructive notice of its existence to the bank. The bank was not charged with notice of deeds or mortgages affecting the real estate upon which its judgment was a lien filed for record subsequent to November 20, 1893. The registry laws apply to subsequent purchasers and incumbrancers only. (Hosmer v. Campbell, 98 Ill., 572.) And paradoxical as it may seem, the bank was a prior incumbrancer of this land to Ocobock, though its judgment was
4. We do not decide whether the bank had notice of the existence of Ocobock’s mortgáge prior to the date it released Baker’s lands from the lien of its judgment, because its cashier subscribed for and read the daily publication of the transactions occurring in the office of the register of deeds, but, for the purposes of this case, assume that it had such notice. Eor, if it be held that the taking and reading of this daily publication by the cashier of the bank was notice to the bank of the Ocobock mortgage, that fact would not entitle the appellant to be substituted or subrogated to the first lien of the bank against the property on which the appellant has a mortgage. This doctrine of subrogation or substitution does not flow from any fixed rule of law. It is applied by courts of equity to prevent a miscarriage of justice, and it is a familiar principle that “he who asks equity must do equity.”
As already stated, Ocobock neglected to notify the bank that he had a lien upon the real estate on which the bank’s judgment was a lien, which lien was subordinate to the bank’s; and he neglected to notify the bank that he desired it to first exhaust the real estate of Baker upon which his mortgage was not a lien before going upon the mortgaged property; nor did he notify the bank that it would be required or expected to exhaust the real estate upon which he, Ocobock, held no lien. Not having done this the bank has not been guilty of any inequity towards Ocobock. How was the bank to know that Ocobock’s debt was unpaid, or that the real
Affirmed.
