Dorr v. Meyer

• Decision Date: 17 March 1897
• Docket Number: 7195
• Citation: 70 N.W. 543,51 Neb. 94
• Parties: SENECA G. DORR, APPELLEE, v. LOUIS MEYER ET AL., IMPLEADED WITH A. W. JANSEN, APPELLANT
• Court: Nebraska Supreme Court

70 N.W. 543

51 Neb. 94

SENECA G. DORR, APPELLEE, v. LOUIS MEYER ET AL., IMPLEADED WITH A. W. JANSEN, APPELLANT

No. 7195

Supreme Court of Nebraska

March 17, 1897

APPEAL from the district court of Lancaster county. Heard below before HALL, J. Affirmed.

AFFIRMED.

Daniel F. Osgood, for appellant.

Roscoe Pound, Burr & Burr, and Davis, Hibner & Whitmore, contra.

OPINION

RAGAN, C.

This is a suit in equity brought in the district court of Lancaster county by Seneca G. Dorr to foreclose a real estate mortgage against Louis Meyer and wife and others. Lionel C. Burr Nelson C. Brock, and Albert W. Jansen were made defendants to the action and filed cross-petitions claiming liens upon the property described in Dorr's petition. Jansen claimed a lien upon the property by virtue of a mortgage made thereon by Meyer and wife in 1888, but not recorded until August 1893. Both Burr and Brock claimed liens upon the property by virtue of mortgages made by Meyer and wife in 1893, but recorded before the record of Jansen's mortgage. The district court, by its decree, postponed the lien of Jansen's mortgage to the mortgages of Burr and Brock, and Jansen has appealed.

1. The court found--and the evidence sustains the finding-- that the mortgages made by Meyer and wife to Burr and Brock in 1893 were made and accepted in good faith to secure debts actually and justly owing by Meyer at that time to Burr and Brock; and that neither Burr nor Brock had any knowledge or notice of the existence of Jansen's mortgage until after their mortgages had been recorded. The record presents two questions, the first of which is whether Burr and Brock are subsequent purchasers of the real estate within the meaning of section 16, chapter 73, Compiled Statutes. This section provides: "All deeds, mortgages, and other instruments of writing which are required to be recorded shall take effect and be in force from and after the time of delivering the same to the register of deeds for record, and not before as to all creditors and subsequent purchasers in good faith without notice; and all such deeds, mortgages, and other instruments shall be adjudged void as to all such creditors and subsequent purchasers without notice whose deeds, mortgages, and other instruments shall be first recorded; Provided, That such deeds, mortgages, or instruments shall be valid between the parties." The Code of Iowa, like ours, provides that the mortgagor of real estate, in the absence of a stipulation to the contrary, retains the legal title and the right to the possession of the real estate mortgaged; and the registry law of the state of Iowa provides: "No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration without notice, unless recorded in the office of the register of deeds of the county in which the land lies, as hereinafter provided." Construing this registry act and the Code, the supreme court of Iowa, in Porter v. Greene, 4 Iowa 571, held that a mortgagee of real estate is a purchaser within the meaning of the laws of this state respecting the recording of instruments. This case was followed and approved in Seevers v. Delashmutt, 11 Iowa 174. But section 45 of chapter 73, Compiled Statutes, provides: "The term 'purchaser,' as used in this chapter, shall be construed to embrace every person to whom any real estate, or interest therein, shall be conveyed for a valuable consideration." Leaving out of consideration, then, the adjudicated cases bearing upon the point under consideration, and looking only to the statute, there seems to be no doubt that a subsequent mortgagee of real estate is a...