59 N.W. 719 | N.D. | 1894
The plaintiffs and appellants brought this action to foreclose a mortgage upon certain realty in the City of Mandan. Thomas J. Mitchell and Sarah E. Mitchell, the grantors in said mortgage, and various other parties interested in said realty, including the Bismarck National Bank, were made defendants. The bank alone made defense. From the unquestioned findings of fact we learn that on and prior to July 8, 1881, the firm of C. S. Weaver & Co., owned the realty in question; that said firm was composed of C. S. Weaver and R. S. Munger, and the realty was held in the individual names of the said partners. On said July 8, 1881, said firm entered into an agreement with said Thomas J. Mitchell to sell to him the said premises for an agreed price, only a small portion of which was paid at the time, and the balance was evidenced by interest bearing notes, executed by Thomas J. Mitchell to C. S. Weaver & Co. To secure said notes, the legal title to said realty was retained by C. S. Weaver and R. S. Munger in trust for C. S. Weaver & Co. At the time of said purchase, Thomas J. Mitchell and Sarah E. Mitchell were husband and wife, and in October, following, they, with their children, moved into a house located on said premises, and so continued to occupy the same as their homestead until some time in the year 1888. That, in 1883, C. S. Weaver & Co., were succeeded by a corporation known as the “Weaver Lumber Company,” to which all of the assets of the firm were duly transferred, including the said notes given by Thomas J. Mitchell as the purchase price for said realty. On December 4, 1884, the said Weaver Lumber Company, at the request of Thomas J. Mitchell, procured from C. S. Weaver, and R. S. Munger, a warranty deed for said premises, running to said Sarah E. Mitchell, which deed was duly delivered to the grantee; and at the same time, and as a part of the same transaction, the said Sarah E. Mitchell executed and delivered to said lumber company a mortgage on said premises, to secure a note then and there given by Thomas J.
The appellants assign and argue but one error, which is thus stated by counsel. “The evidence and pleadings show said lot four [the premises in question] to have been a homestead, and the mortgage under which the bank claims was not jointly
The mortgage executed by Sarah E. Mitchell to the Weaver Lumber Company constituted a valid lien between the parties to the extent that it secured the purchase money of the mortgaged property. It was properly executed and of record, and appellants were bound to take notice of it. In the mortgage which they received the property was declared free of all incumbrances, “except such as now appear of record thereon.” Their attention was thus expressly drawn to the record, and they were infoi-med that their grantors considered the property already incumbered. They could not ignore the record. It is only where a duly executed and recorded conveyance is absoutely void that the record fails to give constructive notice, and in such case neither constructive nor actual notice could aid the void instrument. Appellants found of record an incumbrance which might or might
The decree of the District Court is affirmed.