18 Neb. 195 | Neb. | 1885
This is an action to foreclose a mortgage upon lot 7, in block 242, of Lincoln, alleged in the petition to have been, executed by William Royce and wife to the plaintiff. The c ourt below found the issues in favor of the defendants and that the mortgage was void as to them. The plaintiff appeals.
It appears from the record that in January, 1882, one B. F. Cobb was the owner of the lot in question, and it is-
The mortgage to Traphagen was delivered to Cobb, and with the note of Eoyce accompanying the same was sold to the plaintiff, who was a resident of Illinois. To induce the plaintiff to purchase the same, Cobb, who seems to have kept an abstract of titles, sent an abstract of title of lot 7 wherein the deed from him to Eoyce is marked as having been recorded January 20th, 1882. Cobb, at this time and for more than two years thereafter, seems to have been in good repute, and entrusted by the plaintiff and others with their business, and there is no doubt that so far as the plaintiff is concerned he acted in the utmost good faith. On or about the 7th day of April, 1884, Cobb, being the apparent owner of said premises, entered into a written agreement for the sale of the same to Sarah J. Pound, who immediately took possession thereof and has retained possession ever since. On or about the 24th of September, 1884, Cobb being still the apparent owner of record of said lot, and being indebted to the defendant Irwin in the sum of $2,450 conveyed said premises to her with ■other property by warranty deed. This deed was recorded the next day. This deed, though in form absolute, was intended as a mortgage. Up to this time neither the defendant Irwin or Pound had actual notice of the mortgage to the plaintiff; nor did they have such notice until about the 1st of October, 1884.
On the 4th of October, 1884, Cobb and wife made a quit-claim deed of the lot to the defendant Irwin, and about the same time he made a formal assignment of his interest
A deed duly acknowledged and recorded is constructive-notice to all persons claiming through or under the grantor. Johnson v. Stagg, 2 Johns., 510. Rogers v. Burchard, 34 Texas, 453. Doe v. Beardsley, 2 McLean, 412. Bates v. Norcross, 14 Pick., 231; Schutt v. Large, 6 Barb., 373. Flynt v. Arnold, 2 Met., 619. But where the party executing the deed or mortgage is not in possession and • lias, no record title or apparent interest in the premises, a mortgage executed by him upon such premises is not constructive notice to creditors of or subsequent purchasers from the apparent owner. Chicago v. Witt, 75 Ill., 211. Fenno v. Sayre, 3 Ala., 458. Calder v. Chapman, 52 Penn. St., 359. Lightner v. Mooney, 10 Watts, 407. Losey v. Simpson, 3 Stockt. Ch., 246. Cook v. Travis, 20 N. Y., 402. St. John v. Conger, 40 Ill., 535.
The reason is, the record of a conveyance or mortgage is constructive notice to those alone who must trace their title-through the grantor or mortgagor by whom the deed or mortgage -was made. 2 Pomeroy’s Eq., § 761, and cases cited. The plaintiff’s mortgage, therefore, was not constructive notice to the defendants.
It is apparent, however, that the plaintiff has rights in, the premises which will be protected as far as possible. The defendant Irwin received a deed for a large amount of real estate, as heretofore stated, in September, 1884. This deed, though absolute in form, was in fact merely a mort
Judgment accordingly.