Bacon v. Lederbrand

• Decision Date: 08 July 1916
• Docket Number: 20,300
• Parties: MAMIE BACON, Appellee, v. JOHN W. LEDERBRAND et al. (W. M. DICKSON, Appellant)
• Court: Kansas Supreme Court

160 P. 1029

98 Kan. 631

MAMIE BACON, Appellee, v. JOHN W. LEDERBRAND et al. (W. M. DICKSON, Appellant)

No. 20,300

Supreme Court of Kansas

July 8, 1916

Decided July, 1916

Appeal from Hodgeman district court; ALBERT S. FOULKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

VENDOR AND PURCHASER--Mortgage--Recitals in Recorded Deed--Constructive Notice. A purchaser of real property, the recorded deed to whose grantor contains the following: "Same to be free and clear of all encumbrance except . . . a second mortgage of Seventeen Hundred and Fifty Dollars ($ 1750) due Jan. 1st, 1914, which said second party assumes and agrees to pay," is not an innocent purchaser against such mortgage, although at the time of the conveyance to him the mortgage is not recorded and he has no actual notice thereof.

Roscoe H. Wilson, of Jetmore, for the appellant; E. R. Otis, of Des Moines, Iowa, of counsel.

J. B. Larimer, of Topeka, for the appellee.

OPINION

MARSHALL, J.

In this action the plaintiff recovered judgment for the foreclosure of a mortgage. W. M. Dickson, one of the defendants, appeals.

July 28, 1913, M. C. Schaeffer, being then the owner of the land in controversy, conveyed it by general warranty deed to A. R. Rhine. This deed contained the following:

"Same to be free and clear of all encumbrance except one first mortgage of Twenty Five Hundred Dollars ($ 2500) and interest at the rate of 6% from Mch. 3rd, 1913 and a second mortgage of Seventeen Hundred and Fifty Dollars ($ 1750) due Jan. 1st, 1914 which said second party assumes and agrees to pay. The lease on the above described land accompanies this transfer."

August 3, 1913, M. C. Schaeffer executed a mortgage on the land in controversy to W. E. Bacon for $ 1750. This mortgage was due January 3, 1914, but was not recorded until February 9, 1914. January 17, 1914, A. R. Rhine conveyed this land by general warranty deed to defendant W. M. Dickson. This deed was recorded January 20, 1914. It contained no mention of any $ 1750 mortgage. There was no evidence that W. M. Dickson had any actual notice of the existence of the $ 1750 mortgage. This mortgage was assigned to the plaintiff, and in this action she seeks to foreclose it.

Dickson in his answer denied the execution of the mortgage, and alleged that there had been no consideration therefor, that at the time of the execution of the mortgage the land was the property of W. M. Dickson, that M. C. Schaeffer was never the owner thereof, that it had been conveyed to defendant Dickson by warranty deed from A. R. Rhine and his wife on January 17, 1914, that the deed had been filed for record January 20, 1914, and that the assignment of the note and mortgage to the plaintiff was without consideration. Dickson did not allege that he was the purchaser of the real property without notice of the mortgage sought to be foreclosed.

W. M. Dickson's sole contention is that the recital in the deed from Schaeffer to Rhine is not sufficient to constitute notice to Dickson and to remove from him the protection against an unrecorded mortgage which he would have under the statute, that he stands as a bona fide purchaser of the land, for value, and without notice of this mortgage. The plaintiff in response to this, argues that the question presented by defendant Dickson was not raised in the pleadings and was not in issue at the trial.

We will leave the question presented by the plaintiff, and address ourselves to the one presented by Dickson. Our recording act must be considered in the determination of this...