This is аn appeal from a judgment declaring a mortgage lien on real property to-be superior to a seller’s equitable interest reserved in an agreement relating to the. sаme property and foreclosing the mortgage lien.
The following persons and organizations-were involved in the events which led up to the judgment of foreclosure and appеal therefrom: Winston F. Wright and his wife Lela R. Wright (Wrights); Kelly Development Company, Inc. (Kelly); Surety Mortgage, Inc. (Surety) ; LaPrade Phillips & Lyon, a co-partnership (La-Prade); Guaranty Bank; James Clark (Plaintiff); and W. W. Planning, Inc., (Defendant).
1. 2:50 P.M. — Warranty deed from the Wrights to Kelly.
2. 2:50 P.M. — Realty mortgage from Kelly to Surety Mortgage, Inc.
3. 2:50 P.M. — Assignment of the mortgage by Surety to LaPrade.
•4. 2:50- P.M. — Assignment of the mortgagе by. LaPrade to the Guaranty Bank.
6. 2:50 P.M. — Clark agreement.
•6. 2:50 P.M. — Assignment of the Clark agreement by LaPrade to the Guaranty Bank.
7. 4:47 P.M. — Purchase agreement executed by the Wrights and Kelly.
All of the instruments numbered 1 through 6 were filed and reсorded at the request of Phoenix Title & Trust. The Wright-Kelly purchase agreement was filed and recorded at the request of Winston Wright.
On 10 September, 1963, the Wrights executed, acknowledged and “recorded” a document bearing the title “Clarification Statement”. The document was unilaterally executed by the Wrights and recited that the original purchase agreement executеd by the Wrights and Kelly was only intended to permit Kelly to encumber the subject property for the purpose of obtaining interim financing for apartment construction or for the purpose of obtaining permanent financing for the apartments, and that “any other property loan, or mortgage, or front money would be strictly at lender’s own risk to avoid any complicаtions, or misunderstandings, or foreclosure concerning the property and ‘purchase agreement’ ”.
On 1 March, 1964, Wright sent a letter to Clark which disclosed Wright’s knowledge of the note and mortgage executed by Kelly and of the Clark agreement. The letter advised Clark of the original purchase agreement between the Wrights and Kelly. On 27 August, 1964, the Guaranty Bank informed Clark that the note and mortgage were in default and demanded payment from Clark in accordance with the Clark agreement. Clark paid the amount in default to the Guaranty Bank which in turn assigned the note and mortgage to Clark on 21 September, 1964. The assignment of the mortgage to Clark was recorded on 30 October, 1964.
On 23 September, 1964, Kelly quit-claimed the property back to the Wrights as compliance with the terms of the original purchase agreement. The deed from Kelly to Wright was recorded on 24 Sep
The limited question presented to the trial court, and to this Court on appeal, is whether the interest acquired by W. W. Planning by the 25 September, 1964 conveyance from Wright is superiоr to the interest acquired by Clark as the successor assignee of the mortgage executed by Kelly to Surety.
In resolving this question, we first consider the relative priority of the Wright-Kelly purchase agreement and the mortgage executed by Kelly to Surety, as of 30 August, 1963, the date both instruments were recorded.
A.R.S. § 33^411 provides in part:
“A. >No instrument affecting real property is valid against subsequent purchasers for valuable consideration without notice, unless recorded as provided by law in the office of the county recorder of the county in which the ’ property is located.”
“B. An instrument shаll not be deemed lawfully recorded unless it has been previously acknowledged in the manner prescribed in this chapter except mortgages as provided in § 33^415.”
A.R.S. § 33-412 is somewhat similar, providing in part:
“A.' All bargains, sales, and оther conveyances whatever of lands, * * * and mortgages of whatever kind, shall be void as to * * * subsequent purchasers for valuable consideration without notice, unless they are aсknowledged and recorded in the office of the county recorder as required by law, * *
Surety was a “subsequent purchaser” within the meaning of A.R.S. § 33-411 when it acquired the mortgage from Kelly. Newman v. Fidеlity Savings and Loan Ass’n,
The mortgage executed by Kelly to Surety, the subsequent assignments of that mortgage to LaPrade and from LaPrade to the Guaranty Bank, as well as the Clark agreement were recorded approximately two hours prior to the Wright-Kelly purchase agreement according to the Recorder’s notations appearing on the instruments. Instruments filed with the Recorder are recorded when received, A.R.S. § 11 — 461, and are deemed recorded when deposited for recording. A.R.S. § 11-469. The deposit of an instrument for recording is evidenced by the Recorder’s certified notation of the hour, day, month and year of recording, and the boоk and page where it is recorded. A.R.S. § 11-469.
We are of the opinion that since Surety acquired the mortgage from Kelly without notice, either actual or construe-
We next consider the relative priority of the interest acquired by defendant as successor to Wright and the interest acquired by plaintiff as successor assignee of the mortgage executed to Surety. It is urged by W. W. Planning that since Clark was placed on notice, both actual and constructive, of Wright’s interest of reconveyance in the property and the actual conveyance of the property to Wright prior to the assignment of the mortgage to plaintiff, the mortgagee’s interest acquired by plaintiff was subordinate to defendant’s interest in the property. We cannot agree.
As successor assignee of the mortgage executed by Kelly to Surety, Clаrk acquired all the interest and rights in the mortgage enjoyed by Surety. Wylie v. Douglas Lumber Co.,
We hold that the mortgage executed by Kelly to Surety was prior in right to the equitable interest reserved by Wright, and that Clark as assignee of the mortgage, acquired Surety’s prior interest in the subject property.
Judgment affirmed.
DONOFRIO, C. J. and CAMERON, J., concur.