2 Kan. 236 | Kan. | 1864
The only question necessary to be decided in this case is as to the priority of the liens of the mortgage and judgment. It is insisted by the judgment creditors that because there was no mortgage describing the lands they seek to subject under their judgment upon the records of the County, nor had they any notice of such mortgage, nor was there in fact any such mortgage in existence, their judgment became the first lien upon the lands from the date of its rendition; that they had no notice of the existence of any incumbrance upon the land when their judgment was rendered; that a correction of the description of the land in the mortgage by the Court subsequently to that time, could not deprive them of their prior lien, because they had no notice of the mistake.
If the judgment creditors, without notice of the defect in the plaintiffs mortgage, had become the purchasers of the land, or had taken a mortgage thereon to secure their debt, there would not be much question but that their title in the one case and their lien in the other, would not bo prejudiced by a subsequent reformation of the plaintiffs mortgage. They would then be “ purchasers for a valuable consideration without notice,” within the meaning of Section 13 of the Act regulating couveyances. Gomyp. Lems,p. 855.
But that section does not extend the benefits of a want of notice to judgment lien-holders. They are not “ purchasers.” Their lien is upon the “ lands and tenements of the debtor,” and not upon lands and tenements not in fact belonging to him. Code, Bee. 433.
In this case the lands in question, for the purpose of securing the payment of the plaintiffs debt, were, in equity, the plaintiff’s lands. The District Court in their judgment so find, and as that Court had the legal power so to find, we are bound to presume they had sufficient evidence upon which to make that finding; and it can make no difference to these judgment creditors how that finding was
Several cases from the reports of the Supreme Court of Ohio were cited by the counsel for the judgment creditors to establish the position, that because there was no mortgage upon the records whereby, upon its face, these lands were pledged to the plaintiffs, their judgment was a prior lien. We do not think any of those cases in point under the Ohio Statute, as construed by the Supreme Court of that State. No mortgage was of any validity whatever, except between the parties to it, unless recorded. As to third parties, including purchasers, encumbrance and judgment lien-holders, whether they had actual notice of its existence or not, unless recorded, it was wholly void. Our Statute is different in this respect. A mortgage here is good against every body who has notice of its existence, whether recorded or not recorded, hence the iuapplieability of the Ohio authorities.
We think, therefore, that the lien of the mortgage is prior to that of the judgment, and that the District Court erred in directing the judgment to be first satisfied out of the proceeds of the sale of the land. The judgment of that Court is in this respect reversed at the costs of the defendants, Bryan & Hardcastle, and in all other respects approved, and the cause will be remanded to that Court, and the Court directed to render judgment declaring the