Patton v. Eberhart

| Iowa | Oct 21, 1879

Servers, J.

The ground of demurrer in substance was that the cross-petition on its face showed that Moyer was not entitled to the relief asked. That a “ mortgagee of real estate is a purchaser, within the meaning of the recording laws of this State,” was held in Porter et al. v. Green, 4 Iowa, 571" court="Iowa" date_filed="1857-07-01" href="https://app.midpage.ai/document/porter-v-green-7091286?utm_source=webapp" opinion_id="7091286">4 Iowa, 571; Seevers v. Delashmutt, 11 Id., 174; Hewitt v. Rankin, 41 Id., 35.

There was nothing on the face o-f the mortgage under which Moyer claims, or of record anywhere, to indicate that he was surety on the note signed by him, and which it was given to secure. The plaintiff, therefore, at the time his mortgage was executed did not have constructive notice of such fact.

The payments were made by Moyer prior to the execution of the plaintiff’s mortgage, and as between him and the plaintiff such payments amounted to a satisfaction of the mortgage because the latter had no notice they were made as suretyJ That Moyer, as between himself and Eberhart, had the equitable right to be subrogated to all the rights of the mortgagee Ryan will be conceded. Bn t as the plaintiff was not chargeable with notice of such equity, his rights are paramount and superior to those of Moyer, for under the recording law he is a purchaser without notice.

Affirmed.