Kohn v. Lapham
| Decision Date | 03 April 1900 |
| Citation | 82 N.W. 408,13 S.D. 78 |
| Parties | KOHN v. LAPHAM et al. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Clark county; Julian Bennett, Judge.
Action by Louis Kohn against Charles H. Lapham and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.
C. G Sherwood and Louis Danziger, for appellant. F. G. Bohri and S. A. Keenan, for respondents.
This is an action by the plaintiff to cancel a certain mortgage of record executed to the defendants to secure the payment of $2,500 by one Brown, who was the owner of certain real property in Clark county, in this state. Findings and judgment were in favor of the defendants, and the plaintiff appeals.
The plaintiff claims title to the mortgaged property under and by virtue of attachment proceedings in which Ederheimer, Stine & Co. were plaintiffs and George H. Brown was defendant. The action was commenced on July 11, 1895, to recover about $2,000, a warrant of attachment issued, and a notice of pendency of the action was filed on the same day. A judgment was recovered in the action against Brown, execution issued thereon, and the property sold thereunder to the plaintiff herein, Kohn, who subsequently received a sheriff's deed therefor. The defendants claim a lien upon the property by virtue of the mortgage executed to them by said Brown bearing date the 10th day of July, 1895, executed at Morrison, Ill., and recorded on the 25th day of July, 1895. After finding the facts substantially as above stated, the court concluded as matter of law that the lien of the defendants, as mortgagees, was senior and superior to the interest which said Kohn had in said premises by virtue of his sheriff's deed, and that said defendants were entitled to judgment in this action declaring said mortgage a first lien upon said premises, and that the claim of said plaintiff be declared null and void, so far as the same purports to affect the interest of said mortgagees under and by virtue of their said mortgage. The appellant contends that these conclusions of the court are erroneous, and that under the provisions of section 4897 of our statutes, providing for filing a notice of the pendency of an action, the failure of the defendants to record their mortgage prior to the commencement of the attachment suit, and the filing of a notice of the pendency of the action, had the effect of making the mortgage of the defendants a subsequent incumbrance. The part of the section referred to reads as follows: "And every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice, to the same extent as if he were a party to the action." The respondents contend, in support of the judgment of the court below, that the territorial supreme court and the present supreme court of the state of South Dakota have construed this clause in the section, and that this clause is controlled by section 3293 Comp. Laws, which provides that "every conveyance of real property *** is void as against any subsequent purchaser or incumbrancer *** whose conveyance is first duly recorded," and that within the terms of that section creditors are not included. We are of the opinion that the contention of respondents is correct, and that the question here presented is, in effect, determined by the decision of this court in Roblin v. Palmer, 9 S. D. 36, 67 N.W 949, and Bateman v. Backus, 4 Dak. 433, 34 N.W. 66. In those cases it was held that an unrecorded deed executed and delivered prior to, but not recorded until after, the filing of a lis pendens in attachment proceedings, conveys a title superior to that obtained by the purchaser at the execution sale under the attachment. Those decisions were based largely upon the decision in the case of Lamont v. Cheshire, 65 N.Y. 30. It is true that in the first two cases above cited the parties claimed the property by virtue of an unrecorded deed, but we are of the opinion that one who claims a lien upon the property by virtue of an unrecorded mortgage executed in good faith occupies a position quite as favorable as the holder of an unrecorded deed. It was evidently the theory of the territorial supreme court, and is the theory of this court, that an attaching creditor by his attachment proceedings only acquires such an interest in the property seized by virtue of the attachment as the debtor had in the property at the time such proceedings were instituted, and that, if the debtor had parted with all title to the property prior to the attachment proceedings, he had no interest that could be levied upon by virtue of the attachment. Norton v....
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