10 Mont. 186 | Mont. | 1890
In this appeal two questions of law are to be determined: First, a question of priority and relative legal effect of a judgment lien on real estate, and title acquired at execution sale thereunder, as against a mortgage executed and delivered prior to docketing of the judgment, but not recorded until after the judgment was docketed and levy made under execution. Second, a question as to the sufficiency of description of a portion of the real estate mentioned in the mortgage.
These questions will be considered in the order stated. This appeal is from the judgment of the trial court, and we find in the judgment roll an exception to the conclusions of law found by the court, on the ground that the same are not supported by the facts as found by the court. The facts bearing upon the first point of controversy as found by the court are as follows: March 1, 1886, plaintiff loaned to J. F. Schmalsle seven hundred dollars, payable twelve months after date, with interest at the rate of twenty-four per cent per annum, for which said J. F. Schmalsle made and delivered to plaintiff a promissory note, and a mortgage to secure the same, principal and interest, and twenty-five dollars attorney fees, on certain described lots of land situate in Miles City, county of Custer, which mortgage
The question involved herein as to the relative force of a< judgment lien, and a mortgage made and delivered prior to; docketing of the judgment, but not recorded until after such.! docketing and levy of execution, must be solved by a consideration of the statute relating to the judgment lien and execution, and the statute providing for the conveyance of real estate or interests therein, and the effect of recording such conveyances or withholding the same from record. The statute fixing the judgment lien is found in section 307 of the Code of Civil Procedure, which provides: “Immediately after filing a judgment roll the clerk shall make proper entries of the judgment, under appropriate heads, in the docket kept by him; and from the time the judgment is docketed it shall become a lien
In Rodgers v. Bonner, 45 N. Y. 379, the court says: “A judgment is not a specific lien on any particular real estate of the judgment debtor, but a general lien upon all his real estate, •subject to all prior liens, either legal or equitable, irrespective •;of any knowledge of the judgment creditor as to the existence of such liens.” (See, also, Independent School District v. Werner, 43 Iowa, 643.) In the case of Conrad v. Atlantic Ins. Co. 1 Peters, 442, Mr. Justice Story, announcing the decision of the court, says: “Now it is not understood that a general lien by judgment on land constitutes, per se, a property or right in the land itself. It only confers a right to levy on the same to the «exclusion of other adverse interests subsequent to the judgment; and when the levy is actually made on the same, the title of the creditor for this purpose relates back to the time of his judgment, so as to cut out intermediate encumbrances.”
In Brown v. Pierce, 7 Wall. 205, Mr. Justice Clifford, speaking for the court, declares the extent and effect of a judgment lien as follows: “ Judgments were not liens at common law. .... Different regulations, however, prevailed in different States, and in some neither a judgment nor a decree for the payment of money, except in cases of attachment or mesne process, created any preference in favor of the creditor, until the execution was issued and .had been levied on the land. Where the lien is recognized, it confers a right to levy on the
Notwithstanding this doctrine, if there is any provision in our statutes which changes the relative force of the judgment lien in the case at bar as against the prior acquired mortgage, then the latter must be postponed to the former as held by the trial court. It is insisted by counsel for respondent that a mortgage executed upon land in this State should not be regarded as a conveyance in the sense that applied to a mortgage at common law; that a mortgage on land, as known to
The mortgage in the case at bar is shown to have been executed in the manner provided in said chapter for the execution of “conveyances of land, or any interest therein,” and this mortgage is to be deemed a conveyance in the meaning of that term as used in that chapter. By section 258 of said chapter, this conveyance is declared to be valid and binding as between the parties thereto without recording. Now, if that w'as a valid and binding conveyance of an equitable interest in said land, as between the plaintiff and her mortgagor, the mortgage interest had been effectually conveyed away prior to the attaching of the judgment lien on said land. In view of the doctrine
Contrary to the authorities cited supra, our attention is called to an observation of Mr. Freeman in his work on Judgments (3d ed. § 366), to the following effect: “In some States the registry laws so modify the effect of conveyances and other instruments concerning real estate, as to give a judgment lien precedence over an unrecorded instrument of which the judgment creditor had no knowledge at the date of attaching of the lien of his judgment.” Also note 1 to this observation, in which the author says: “ The tendency of recent statutes, and the decisions interpreting them, is to give a judgment lien precedence over a prior unregistered conveyance or encumbrance, especially if the plaintiff had no notice of it when his judgment was docketed or registered, or the levy of the writ made.” In this connection respondent cites cases decided in the courts of last resort in the States of Texas, Virginia, West Virginia, and Georgia. To these citations might have been added cases decided in Massachusetts, Ohio, Illinois, Pennsylvania, and perhaps other States. But on examination of these decisions, and the statutes under which the same were made, we find provisions differing radically from those of our own State. In the States mentioned the courts were confronted by statutory provisions, which gave precedence to a judgment lien, as remarked by Mr. Freeman, either expressly or by fair implication, and the courts where these decisions are found were interpreting such statutes. The weight of these citations rather tends to confirm us in the opinion, that under our statute we could not fairly construe a judgment creditor’s lien to be paramount to a bona fide mortgage, although not recorded at the time the judgment was docketed. It requires the force of statute to make a valid and binding unrecorded mortgage void as to the judgment creditor’s lien, in like manner as it requires statutory provisions to make an unrecorded deed or mortgage void as to subsequent purchasers or mortgagees. It has been held in Chumasero v. Vial, 3 Mont. 376, that the purchaser at execution sale is governed by the rule, caveat emptor, and that if the judgment debtor was holding the legal title to real estate in trust for another, and such property was sold under execution against
We now come to the consideration of the second question involved in this appeal, namely, whether or not the trial court erred in the conclusion of law that the fractional portion of lots 1 and 2, of block 44, mentioned in the mortgage, were not sufficiently described, and for that further reason the mortgage should have no effect upon said portion of said lots as against the judgment lien of respondent. The complaint pleads the mortgage by setting it forth in its own terms. The descriptive portion in question is set forth in the mortgage as follows? u And sixteen feet of the north end of lots one (1) and two (2), in block forty-four (44), in said town of Miles City, according to the plat thereof filed for record,” etc. The town, county, and State wherein the said lots are situate are fully set forth. The answer does not deny that the plaintiff’s mortgage included some portion of lots 1 and 2, of block 44. The answer alleges that the sheriff sold the property described in the mortgage at public sale, and that “ said premises, and the whole thereof, was sold to defendant.” The answer further alleges that said Jacob F. Schmalsle was, at the time of docketing said judgment, the owner of the property in said mortgage set out and described, and the whole thereof.” Among other findings of fact the record shows that the court found: “ That at the time of the mortgage, and since, the defendant, Jacob F. Schmalsle, never owned any other property in said block 44 than the fractional
It is contended by the appellant that as to said lots 1 and 2, of block 44, the descriptive language of the mortgage means sixteen feet in depth severed from the north end of said lots, or in other words, that the partition line severing plaintiff’s portion of said lots under said mortgage would cross said lots sixteen feet from the north end thereof . On the other hand, respondent’s counsel contends that the terms of the mortgage, “sixteen feet of the north end,” may mean sixteen square feet. The pleadings do not call upon the court to correct any mistake or imperfection of the conveyance, or to make it conform to the intention of the parties thereto. If such an issue was involved, under the present state of the pleadings, and facts found, we should have no difficulty in drawing -a conclusion as to the meaning of said descriptive terms, being guided by the provisions of sections 628 to 633 inclusive, of the Code of Civil Procedure. The plaintiff is apparently satisfied with the description as it stands in the mortgage. We think the court erred in concluding that the mortgage was void, in so far as it related to lots 1 and 2, of block 44, for uncertainty of description. The plaintiff is entitled in that respect to a foreclosure of her mortgage according to the description therein contained.
It is therefore ordered that the judgment of the court be reversed, and that judgment and decree of foreclosure of plaintiff’s mortgage be entered in favor of plaintiff, on the facts found, to the effect that her mortgage lien stand precedent to respondent’s claims upon said premises set up in this action, and to all other intents, in the manner provided by law and the practice in such cases.