24 Ind. 165 | Ind. | 1865
This was an action by Israel Bunyan and McDonald Boache against Joseph McClellan, Jacob McClellan and William Barnett. The complaint consists of throe paragraphs. Upon the first and third issues were made, and tried by the court, who found for the defendants. To the second paragraph the court sustained a demurrer, and this ruling presents the only question for the consideration of this court.
Does the paragraph present a good cause of action ? In framing it, the pleader probably intended to base it on § 11, of the “ Act concerning real property and the alienation thereof,” 1 G. & H. 259, which declares that, “No conveyance of any l’eal estate in fee simple, &c., shall he valid and effectual against any person other than the grantor, his heirs and devisees, and persons having notice thereof, unless it is made by a deed recorded within the time, and in the manner provided in this act.” The sixteenth section of the act provides when and where such deed shall bo
Under the provisions of §§ 526 and 527 of the code, 2 G & H., 263, 264, the judgment was a lien, from the date of its rendition, on all the lands of the said Joseph McClellan, whether in possession, reversion, or remainder, &e. But as he had sold and conveyed the lot in controversy to Jacob McClellan and William Barnett, long prior to the date of the judgment, he had no title or interest in it, at that time or afterward, to become the subject of a judgment lien. The judgment plaintiffs, therefore, acquired no lien on, or interest in, the lot by their judgment.
The deed was valid as against Joseph McClellan, the grantor and judgment defendant; and as the plaintiffs, McDonald $ Roache, can only claim an interest in the lot by virtue of their judgment attaching as a lion thereon, through a title in him, and as no such title existed, it follows that a failure to record the deed within the time required by the statute, and the ignorance of the judgment plaintiffs of its existence, cannot create such lien. But it is insisted that Runyan was induced to become replevin bail on the judgment, under the belief that the title to the lot was in Joseph McClellan, and the judgment a lien thereon, an4 that, therefore, he is injuriously affected by the failure
In Chenyworth v. Daily, 7 Ind. 284, it was held by this court, that a mortgage of personal property, the mortgagor remaining in possession of the mortgaged goods, and the mortgage not being recorded within ten days from the date of its execution, was absolutely void as to creditors, and it is insisted that the statute under which that ruling was made, is similar to the one under consideration, and that the decision in that case is, therefore, decisive of the construction to be given to this statute. But we do not think so. There the statute provided that, “No assignment of goods and chattels, by way of mortgage, shall bo valid against any other person than the parties thereto, where the possession of such goods,” &e., “is not delivered to the mortgagee, unless such assignment shall be proved or acknowledged,” &c., “ and recorded,” &e., “ within ten days after the execution thereof.” No exception is made as to persons having notice of the existence of the mortgage, and it was held, therefore, that it was absolutely void as against creditors. But in the case at bar, the eleventh section expressly excepts from the benefits of the statute persons having notice thereof; whilst section 16 only renders such an unrecorded deed to lands, “fraudulent and void, as against any subsequent purchaser or mortgagee in good faith, and for a valuable consideration.” There is no conflict in these sections, and they must be construed together. Both, in effect, provide that such an unrecorded deed shall bo valid
The paragraph of the complaint under consideration docs not show that the plaintiffs, or either of them, have acquired such an interest, and the demurrer to it was, therefore, correctly sustained.
The judgment is affirmed, with costs.