Albia State Bank v. Smith

• Decision Date: 16 February 1909
• Citation: 119 N.W. 608,141 Iowa 255
• Parties: ALBIA STATE BANK v. SMITH ET AL.
• Court: Iowa Supreme Court

141 Iowa 255

119 N.W. 608

ALBIA STATE BANK

v.SMITH ET AL.

Supreme Court of Iowa.

Feb. 16, 1909.

Appeal from District Court, Monroe County; D. M. Anderson, Judge.

Action to foreclose mortgages as against defendants George S. Smith and Zulah H. Smith, his wife, and to have plaintiff's lien thereunder declared superior to any claim of defendants R. P. Smith & Son's Company and W. T. Gardner, executor. The decree gave the last-named defendants priority as to one mortgage on account of indefiniteness of description therein, and plaintiff appeals. Modified and affirmed.H. H. Trimble and D. W. Bates, for appellant.

Perry & Perry, for appellees.

McCLAIN, J.

The two defendants first named in the title of the case executed the mortgages foreclosure of which is asked, and the other defendants claim liens on the property covered by such mortgages superior to the lien of the plaintiff under one of them, and to avoid circuity in description George S. Smith and his wife will be referred to as mortgagors, and the other two defendants named in the title of the action will be referred to as defendants. In 1903 the defendants recovered several judgments against the mortgagors, and in 1904 instituted their action to have a conveyance of property by mortgagors set aside, and the property subjected to the payment of their judgments, and in February, 1905, the relief prayed for was granted to them, and the lien of their judgments established as against the mortgagors and their grantee. The description of the property in this decree was as follows: “Commencing at a point on the east line of South Main street, 148 ft. south of a point 2 rods south of the north line of the northeast quarter of the southwest quarter of Sec. 22 Twp. 72 R. 17; thence south 198 feet; thence east 17 rods; thence north 198 feet; thence west to the place of beginning.” After the rendition of that decree, the present action was brought to foreclose two mortgages given on the same property by the mortgagors above referred to, the first to the Farmers' & Miners' Savings Bank of Monroe County, duly assigned to plaintiff, and the second executed to plaintiff directly with a reference making it subject to the first. It was also asked that the description in these two mortgages be corrected so as to cover the property intended by the parties which it sufficiently appears from the pleadings was the same property which in the previous action by these defendants against the mortgagors had been declared subject to the judgments of the former. The mortgagors as defendants in the present action made default, and it is sufficiently shown by the record, and not questioned in argument, that, as between plaintiff and the mortgagors, the evidence is sufficient to warrant a reformation.

The defendants claim, however, that by their decree establishing their right to subject the property to their judgment they became purchasers in such sense as to be protected by the recording act (Code, § 2925) against the mortgage given directly to plaintiff; for, while this mortgage as well as the first mortgage which plaintiff holds as assignee were recorded prior to the recovery of defendant's judgments against the mortgagors, and the defective description in the first mortgage was corrected in a substituted mortgage which was also recorded prior to the recovery of defendant's judgments, there was no such correction made as to the second mortgage. But the claim for defendants in this connection that, by recovering a decree to subject the land, they became subsequent purchasers protected under the recording act against prior equities and unrecorded instruments, is not sound. Defendants certainly acquired nothing more than a specific lien under such decree, and this lien was of no higher right certainly than that of an attaching creditor who has caused real property to be levied upon for the payment of his claim, and it is well settled that an attaching creditor is not protected under the recording act with reference to real property. Even after a levy under attachment, the prior conveyance may be recorded, or, if defective in description, may be corrected so as to defeat the lien of such attaching creditor. Bush v. Herring, 113 Iowa, 158, 84 N. W. 1036;Rea v. Wilson, 112 Iowa, 517, 84 N. W. 539;Clark v. Bullard, 66 Iowa, 747, 24 N. W. 561. Although it is otherwise under the recording act relating to chattel mortgages (see Code, § 2906; Bacon v. Thompson, 60 Iowa, 284), it has uniformly been held under the statute as to recording of instruments affecting real property that one who claims protection as a subsequent purchaser must have proceeded further than merely to levy an attachment or execution upon the property. He becomes such purchaser only when he buys in the property at execution sale. Norton v. Williams, 9 Iowa, 528; Thomas v. Kennedy, 24 Iowa, 397, 95 Am. Dec. 740; Chapman v. Coats, 26 Iowa, 288;Zuber v. Johnson, 108 Iowa, 273, 79 N. W. 76. The case of Bridgman v. McKissick, 15 Iowa, 260, and Fordyce v. Hicks, 76 Iowa, 41, 40 N. W. 79, are not in point, for they relate only to the priority of right acquired by one creditor who brings an equitable action to subject property to the lien of his judgment as against other creditors having general judgment liens without acquiring specific liens upon the property.

But on other grounds we think that defendants are without standing as against the second mortgage, even though the description therein was imperfect. The description of the premises in the first mortgage was as follows: “Commencing at a point 148 feet south of the east line of the south extension of Main street in Albia, two rods south of where said line intersects the north line of the N. E. quarter of the S. W. quarter of section 22, township 72, range 17, thence running south 198 feet; thence east 17 rods; thence north 198 feet; thence west to the place of beginning.” In the execution of the second mortgage this description in the first mortgage was substantially copied from the first, and is as follows: “Commencing at a point one hundred forty-eight (148) feet south of the east line of the south extension of Main street in Albia, Iowa, two rods south of where said line intersects the north line of the northeast quarter (1/4) of the southwest quarter (1/4) of section twenty-two (22) township seventy-two (72) range...