McClurg v. Phillips

• Decision Date: 31 July 1874
• Parties: J. N. MCCLURG, Appellant, v. JESSE A. PHILLIPS, et al., Respondents.
• Court: Missouri Supreme Court

57 Mo. 214

J. N. MCCLURG, Appellant,

v.JESSE A. PHILLIPS, et al., Respondents.

Supreme Court of Missouri.

July Term, 1874.

Appeal from Webster Circuit Court.

E. G. Mitchell, for Appellant.

I. The instrument sued on is a good equitable mortgage, created a valid lien on the land in question, and can be enforced against the mortgagor and all subsequent purchasers having notice of its existence or contents. (McClurg vs. Phillips, 49 Mo., 315; Gill vs. Clark, 54 Mo., 415.) An equitable mortgage is a writing whereby the lands in question are “affected in equity.” (Wagn. Stat., 277, § 24.)

II. The same was properly acknowledged and recorded, and hence imparted notice. (Wagn. Stat., 277, § 25.)

Massey, McAfee & Phelps, for Respondents.

The recording of the unsealed mortgage is not notice, to Paul, of plaintiff's equitable mortgage, and Paul having no actual notice and having a sheriff's deed the judgment should be affirmed. “All deeds or other conveyances of lands or of any estate or interest therein, shall be subscribed and sealed by the party granting the same, etc.” (Wagn. Stat., 273, § 7; 272, § 1.) “Every such instrument, from the time of filing the same with the recorder for record, imparts notice.” (Wagn. Stat., 277, § 25.)

ADAMS, Judge, delivered the opinion of the court.

This was an action in the nature of a bill in equity to foreclose an equitable mortgage. The mortgage was executed by the defendant, Phillips to the plaintiff, in the year 1860, to secure a promissory note which was given at the same time. The mortgage covered several tracts of land in Webster County, and was duly acknowledged and recorded in Webster County. It was in the shape of a legal mortgage in all respects, except that it was not under seal and had no scrawl affixed by way of seal.

In 1867, the defendant, Paul, purchased part of the mortgaged premises at execution sale against the defendant, Phillips, and took the sheriff's deed therefor in regular form. He claims to be an innocent purchaser for value, without any notice whatever, of the plaintiff's mortgage. The proof showed that he had no notice, in fact or otherwise, except what may have been imparted by the registry of the mortgage. The court decided that inasmuch as the mortgage was not a sealed instrument, the registry imparted no notice, and gave judgment releasing the lands claimed by the defendant, Paul, from the mortgage. The only point raised by the record is, whether our registry act applies to equitable, as well as legal instruments affecting real estate.

In construing the act we must look at the whole law and bring together the several sections bearing on the question. Section 7 (1 Wagn. Stat., 273) provides that “all deeds or other conveyance of lands or of any estate or interest therein, shall be subscribed and sealed by the party granting the same or by his lawful agent, and shall be duly acknowledged or proved and certified in the same manner hereinafter prescribed.”

Section 24 (1 Wagn. Stat., 277) provides: “Every instrument of writing that conveys any real estate, or whereby any real estate may be affected in law or equity, proved or acknowledged and certified in the manner hereinbefore prescribed, shall be recorded in...