73 Iowa 283 | Iowa | 1887
The question as to the priority of the resjiective liens arose upon a demurrer by the plaintiff to the defendant Minchem’s answer. The answer, in connection with the admitted averments of the petition, showed, in substance, that the two mortgages were executed, on the same day, to-wit, the 7th day of July, 1883, and that they were both filed for record on the ninth day of the same month; that the defendant’s mortgage was executed first, but the plaíntiíí’s was first filed for recoi’d; that the plaintiff’s mort
It is not shown that the plaintiff had actual knowledge that the defendant’s mortgage was executed first; but it is claimed that he is chargeable with knowledge by reason of the constructive notice imparted by the record. In English v. Waples, 13 Iowa, 57, it was held that a mortgage, junior in execution, but prior in record, did not have priority of the mortgage which was senior in execution. The facts were that the mortgage junior in execution, and the note secured thereby, were made to one Cooley, who sold and transferred the same to one Samuels, and the latter sold and transferred them to one Mason. Cooley had actual knowledge of the senior mortgage at the time he took the junior mortgage, and Samuels had such knowledge at the time he bought it. At the time that Mason bought it, both mortgages had been recorded, and it was held that he had constructive knowledge of the senior mortgage’s priority. Whether that decision is based upon sound principles, or whether it can be reconciled with what is said in Vandercook v. Baker, 48 Iowa, 199, we need not determine. The record in the case of English v. Waples showed which mortgage was executed first. The record in the case at bar did not, as the mortgages bore the same date.
It is said, to be sure, that even such record was sufficient to put the plaintiff on inquiry; but we think not. There being nothing to indicate that his mortgage was not executed first, we think that he was not bound to go beyond the record. The defendant relies upon Sims v. Hammond, 33 Iowa, 368. In that case a mortgage, both senior in execution and prior in record, was held not to be paramount,
The defendant contends that the plaintiff’s demurrer is not sufficient in form. As we are of the opinion that the answer was demurrable, we should not be justified in scrutinizing very critically the form of the demurrer. The question between the parties seems to have been fairly tried. We think that the court did not err, and the judgment must be
Affirmed.