| Ill. | Sep 25, 1880
delivered the opinion of the Court:
But a single question is necessary to be considered in the determination of this case. It appears, from undisputed testimony, that both Mrs. Houfes and Sehultze acted in good faith, and actually paid the money to secure the payment of which the trust deeds were executed. The trust deed in favor of Mrs. Houfes was executed and delivered February 5, and was simply a continuation of the old mortgage. The trust deed in favor of Sehultze was executed March 26, recorded March 27, but was not delivered nor did Sehultze pay his money until April 8, on which day the Houfes trust deed was recorded. The release of Mrs. Houfes’ mortgage was recorded between the time of the execution and recording of the Sehultze trust deed and the delivery thereof to Sehultze and the payment of the money by him.
The trust deed made to secure the Sehultze loan was not a lien upon this property until the money was paid. If the payment to Hash by Sehultze and the recording of the Mrs. Houfes’ trust deed were simultaneous, neither, under our recording laws, could be regarded as prior to the other. Where the legal rights and equities of the parties are equal, the first in time is first in right. The equity of Mrs. Houfes, in this case, is equal in merit with that of Sehultze, and her equity is prior in time. She is, therefore, first in right. The trust deed for the benefit of Sehultze was of no greater effect than it would have been had it been filed for record at the moment when Sehultze paid the money thereon to Hash. Mrs. Houfes’ trust deed being recorded at the same time, their liens under the recording laws were simultaneous. But Mrs. Houfes’ claim was prior to that of Sehultze, and her trust deed was good without record as against all persons except subsequent purchasers whose conveyances were recorded before her trust deed was recorded.
The 30th section of the Conveyance act provides as follows : “All deeds, mortgages and other instruments in writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall be filed for record.”
Were it not for the foregoing act, there could be no question that the Houfes trust deed, having been first executed, would be superior to that in favor of Schultze, for her equities are prior in time, but, under this act, the question whether the Schultze trust deed is entitled to priority, depends upon whether, at the time the Houfes trust deed was filed for record, Schultze was a creditor or subsequent purchaser, within the meaning of the statute. Inasmuch as he claims rights under this statute as a bona fide purchaser without notice, it is not sufficient that it should appear that he became a purchaser simultaneously with the recording. It is essential, to render Mrs. Houfes’ deed inoperative, as against him, that it shall appear that he became a purchaser subsequent to the making of that deed, and prior to its being filed for record.
By this record, which occurred first does not appear. It is very clear that if the payment of the money was essential to make Schultze a purchaser or creditor, and if he can only be treated as a purchaser at and from the time of such payment, he has not shown himself a purchaser prior to the record of the deed of Mrs. Houfes, and the decree of the Appellate Court was right.
We are clearly of opinion Schultze did not become a purchaser, within the meaning of the statute, until he paid his money. Until that time, he was under no legal obligation to loan Hash the money, nor was Hash under any legal obligation to receive it, but all the transaction amounted to was simply this, that Schultze took under advisement Hash’s proposition to borrow the money. Had the transaction amounted to a contract which either party could have enforced, it might well have been insisted that Schultze became a purchaser at the time such contract was made.
It makes no difference that the intention of Hash and Schultze was, that upon the payment of the money by Schultze, his title should relate back to the time of the recording of the deed. As between the parties themselves, such an intention might be carried into effect by the court. But when the rights of third persons intervene, the intention of the parties must yield to the law.
It ife suggested by counsel for appellants, that there is no proof the Houfes trust deed was ever delivered to the trustee, and that, therefore, it must be treated as null and void.
• This position is not tenable. The trust deed made by Hash to Edmund Knauer to secure to Mrs. Houfes the payment of the debt of Hash to her, was prepared, signed and sealed in the presence of Mrs. Houfes, and placed in the hands of Knauer Brothers that the same might be filed for record. This we think was a sufficient delivery.
It is also insisted the Appellate Court ought not to have compelled appellant Schultze to pay the costs. The awarding of costs in such eases is a matter of discretion in the court below. (Sec. 18, chap. 33, Bev. Stat. 1874.)
After a careful consideration of the elaborate arguments ■filed on both sides of this case, we are satisfied the Appellate Court has correctly applied the law to the undisputed facts of this case,, and that its decree is right, and therefore we affirm it.
Decree affirmed.