Hill v. Paul

• Decision Date: 31 January 1844
• Citation: 8 Mo. 479
• Parties: HILL v. PAUL.
• Court: Missouri Supreme Court

8 Mo. 479

HILL

v.PAUL.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM BUCHANAN CIRCUIT COURT.

CAMPBELL and HICKMAN, for Appellant. 1. The Circuit Court erred in giving the instructions asked by the plaintiff (below), Paul, and in refusing to give the third instruction asked by the defendant, Hill. See 1 Dana, 166, 359; 4 Bibb, 78. 2. That the Circuit Court erred in overruling the motions for a new trial, and in arrest of judgment. See Rev. Stat., 1835, p. 339, §§ 1, 2, 3; Jones v. Luck, 7 Mo. R. 551.

NAPTON, J.

This was a petition to foreclose a mortgage, brought by Paul, the mortgagee, against Mitchell, the mortgagor, and Hill, the occupant of the mortgaged premises. At the return term of the writ, Hill appeared and pleaded; at the same term a judgment was entered against Mitchell, for the sum of money secured by the mortgage and costs, an appearance having been previously entered for Mitchell. Hill's plea claimed title in himself, and denied that Mitchell had any title or interest in the premises. To these pleas replications were filed, and issues taken thereon. The issue was tried by a jury, and under the directions of the court, a verdict was found for the plaintiff.

The facts appearing in evidence were these: The mortgage of Mitchell to Paul was dated on the 10th day of June, 1841; was acknowledged on the same day, and filed for record on the 25th of September, 1841. Hill purchased at a sheriff's sale, under judgments and executions against said Mitchell, which judgments were rendered on the 5th and 6th days of July, 184 The sale under the executions took place on the 18th of October, 1841, and the sheriff's deed was dated January 18th, 1842, acknowledged in court March 23rd, 1842, and filed for record on the same day. On the day of the sale, under execution, it appeared that Hill was informed by W. B. Almond, attorney for plaintiff, that there was a mortgage on the lot. The Circuit Court instructed the jury, that the mortgage was good against the purchaser at the sheriff's sale.

Several objections have been taken to the regularity of the proceedings in this case, in relation to Mitchell, but as the whole merits of the controversy depend entirely on the correctness of the opinion of the Circuit Court, in regard to the relative value of the mortgage and judgment liens, we shall confine our examination to this question. Our statute requires every instrument in writing, that conveys any real estate, or by which real estate may be affected in law or equity, to be recorded; and declares that the instrument so recorded shall, from the time of filing the same with the recorder, for record, impart notice to all persons of the contents thereof, and that all subsequent purchasers mortgagees shall be deemed to purchase with notice. Rev. Code, 1835, title Conveyances, p. 123. The 32nd section of the act declares, that “no instrument shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record.”

In New York, it is held, that an unregistered mortgage has a preference over a subsequent docketed judgment, and the purchaser, at the sheriff's sale, under the judgment, is not protected against the mortgage, if the mortgage is registered before the sale. Jackson v. Dubois, 4 Johns. R. 217; Jackson v. Terry, 13 Johns. R. 471. The statute of the State declares that the mortgage first registered shall have a preference, and provides, that no mortgage shall defeat or prejudice the title or interest of any bona fide purchaser, unless the same be duly registered, according to the provisions of the statute. A judgment creditor is not to be considered a bona fide purchaser within that act, and in the case of Jackson v. Dubois, the court expresses the opinion, that the judgment being by act of law, does not destroy the lien acquired by an unregistered mortgage, or gain a preference over it. In Jackson v. Town, 4 Cowen, 606, the question arose as to the value of an unrecorded deed (an unconditional conveyance), in a county where by the law such deeds were declared void, as to subsequent bona fide purchasers, or mortgagees, in a contest between the grantee, in such a deed, and the purchaser under a judgment against the grantor, docketed subsequently to the conveyance. The sheriff's deed, in that case, was first recorded; but the court held that, the conveyance (being admitted to be bona fide and for a valuable consideration) passed all the interest of the grantor, and there was nothing upon which the judgment could operate, and the grantee in the unrecorded deed was adjudged to hold the premises, in opposition to the purchaser at the sheriff's sale. In Jackson v. Post, 9 Cowen, 120, the same doctrine is maintained. In this case, the judgment debtor conveyed his land before judgment, and though the deed was not recorded for several years after a sale under the judgment, and no notice of the first deed was given to the purchaser at the sheriff's sale under the judgment, it was held, that the conveyance by the judgment debtor was valid against the subsequent bona fide purchaser under the judgment.

In South Carolina the same doctrine prevails, and a prior unrecorded mortgage is preferred to a subsequent judgment. Executor of Ashe v. Executors of Livingston, 2 Bay R. 80.

In Pennsylvania and North Carolina the rule is different, and a judgment creditor is preferred to a prior unregistered mortgage, and is not affected by notice of...