The question here presented may be concisely stated thus: Is the lien of a subsequent judgment creditor, in this State, paramount to the lien or equity of a prior mortgagee, as to lands intended to be mortgaged, but which, by accident or mistake, were misdescribed ?
The general equitable jurisdiction to correct and relieve against errors and mistakes in deeds and other conveyances is not questioned, and is, indeed, recognized by statute. Rev., § 2257. The former decisions of this Court establish principles which, though arising in cases somewhat different from the present one, are, nevertheless, decisive of it. In Norton v. Williams,
In these cases, the unrecorded deed was for the right land; in the case at bar the conveyance was intended to be for the right land, but by accident or mistake there was a misdescription, and the inquiry is, ought this to lead to a different result ?
In maintaining that it ought, the learned counsel for the defendant sums up this case with' great force, as follows: “Two creditors of a common debtor both attempt to get .a
If we should admit the premises of the counsel, viz., that the plaintiff intended to get a lien, but did not, his conclusion would be legitimate, if not inevitable.
Now let us look at this case on principle, before looking at the adjudged cases, for precedents. We can best do this by contrasting the situation and the rights of the two parties. The plaintiff is confessedly first in point of time. His is the elder- right. The debtor, for a valid consideration, agreed to execute a mortgage (for the deed of trust may, for the purposes of this suit, and for the convenience sake, be so called), on lands which he owned, not on lands which he did not own. That is, he agreed, and undertook, though defectively in the eyes of a court of law, to bind these lands of his, to set them apart, specifically to appropriate them to the plaintiff. Now, in equity, he did thqs bind, appropriate, and set them apart. Therefore, in equity, which deems as done that which the party has agreed to do, the plaintiff had not only a mortgage, but a mortgage on the right land — on the land intended. In equity, the plaintiff did not, as contended, simply attempt to get a lien, but he actually secured a lien on the parcels designed to be conveyed to him; and not a lien, merely, but his rights were such that he is regarded by the decisions of this Court, as he would'be regarded by the decisions of the other courts, in the light of a purchaser. Porter el al. v. Green et al., 4 Iowa, 571; 11 Id., 174. The debtor was bound in conscience to correct the mistake. His obligation to correct it was such an equity as would bind his heirs, voluntary grantees, or pur
We have extended our examination of the authorities .beyond the range indicated by counsel, and have found no case, under a statute at all similar to ours, which militated against, while, on the other hand, we found many which accorded with, the conclusion we have reached. In Burgh v. Francis, 1 Eq. Cas. Abr., 320, pl. 1, (apud, 1 P. Wms. 278), it was decreed by Lord Keeper Bridgman, and affirmed by Lord Chancellor Nottingham, where there was a defective mortgage, it being made by way of feoffment, without livery, and after this the mortgagor confessed judgment to a third person, nevertheless the estate being in equity specifically bound by the mortgage, the latter had preference over the judgment. See also Finch v. Earl of Winchelsea, 1 P. Wms., 278. These cases were followed by Burn v. Burn, 3 Vesey, 582, where even an agreement for a mortgage was
White v. Wilson,
Because the demurrer in the present case was sustained, when, in the opinion of this Court it should have been overruled, the judgment below is reversed, and this cause will be remitted to the District Court, with leave to the defendant to answer to the petition, if he is so advised.
Reversed.