Mueller v. Engeln
| Decision Date | 06 December 1876 |
| Citation | 75 Ky. 441 |
| Parties | Mueller, & c. v. Engeln, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CHANCERY COURT.
MUIR BIJUR & DAVIE, For Appellants,
6 Greenleaf's Rep. 158, Farrar v. Stackpole.
4 Met 361, Johnson v. Wiseman.
2 Watts & Serg. 118, Voorhies v. Freeman.
2 Smith's Leading Cases, pp. 268, 269.
4 Met. (Mass.) 306, Winslow v. Insurance Co.
5 Munford, 539, Williams v. Price.
9 Barb 630, Dunning v. Stearns.
7 Cal 264, Hewitt v. Flint.
4 Littell, 319, Johnston v. Gwathmey.
6 B. Mon. 73, Honore v. Bakewell.
6 B. Mon. 74, Thornton v. Knox.
7 B. Mon. 117, Woodward v. Woodward.
4 Ohio Rep. 458, Reeder v. Barr.
23 Ohio St. 114, Metcalfe v. Fosdick.
28 New York, 180, Martin v. Cope.
28 Pa.St. 278, Christian v. Drips.
40 Maine, 310, Blethen v. Towle.
38 Maine, 28, Sawyer v. Fisher.
15 Peters, 112, Brush v. Ware.
O. A. WEHLE, For Appellees,
CITED
Story on Eq. Juris., section 404.
Walker (Mich.), Ch. R. 183, Wing v. McDowell.
Hare & Wallace, Notes to Le Neve v. Le Neve, 2 Lead. Ca. in Eq., 3d ed., 152, 168.
Sugden on Vend. 755 (Ed. of 1873.)
| 4 Ind. 283, Read v. Coale. | 2 Ind. 445, Brown v. Budd. |
5 Mich. 517, Dutton v. Ives.
4 Littell, 168, Bank of Kentucky v. Vance.
4 J. J. Mar. 558, Halstead v. The Bank of Kentucky.
1 Strobh. Eq. R. (S. C.), 400, Villard v. Roberts.
3 Cranch (U. S. S. C.), 155, Hodgson v. Butts.
8 Ark. 252, Barrett v. Mason.
9 Barb. 633, Dunning v. Stearns.
2 Stew. & Port. (Ala.), 82, Baker v. Washington.
8 Dana, 82, Averill v. Guthrie.
2 Watts, 75, Kerns v. Swope.
5 Leigh (Va.), 677, French v. The Loyal Co.
4 Mass. 637, Farnsworth v. Childs.
4 Litt. 318, Johnston v. Gwathmey.
1 Cha. Ca. 257, Tanner v. Florence.
1 Cha. Ca. 287, Bisco v. Earl of Banbury.
1 A. K. M. 120, Graves v. Graves.
1 A. K. M. 58, Cotton v. Hart.
4 Met. 192, Willis v. Vallette.
1 Hare, 43 S. C., 1 Phil. Jones v. Smith.
3 Vermont, 425, Tobias v. Francis.
3 Mason, 459, Powell v. Monso Co.
9 Cow. 63, Swift v. Thompson.
1 McCook, 511, Teaff v. Hewitt.
10 Barb. 157, Vanderpoel v. Van Allen.
20 N.Y. 344, Ford v. Cobb.
18 Pick. 361, Pitcher v. Barrows.
26 Wend. 473, McFarland v. Wheeler.
32 Maine, 28, Sawyer v. Fisher.
34 Ga. 369, Freeman v. Bass.
13 Peters (S. C. U. S.), 423, Anthony v. Butler.
14 B. M. 224, Tiernan v. Thurman.
17 B. M. 684, Gault v. Trumbo.
46 N.Y. 384, Acer v. Westcott.
21 Beavan, 431, De Bright's Trust.
| 10 B. M. 187, Russell v. Petree. | 14 Mass. 352, Gale v. Ward. |
| 11 Vt. 433, Sturgis v. Warren. | 35 Vt. 317, Sweetzer v. Jones. |
| 18 N.Y. 28, Murdock v. Gifford. | 17 John. 117, Cresson v. Stout. |
Mueller, by his deed to Kniper and Nadorff, conveyed the real estate, and evidenced the fact of a sale to them of the personal property therein described.
The recital of the amount of unpaid purchase-money secured and preserved a vendor's lien as to the realty, and the recording of the conveyance was, under the statute, notice to the world, so far as that lien was concerned. But as to the personalty, the conveyance or deed was a mere bill of sale, which is neither authorized nor required to be put to record. As between the vendor and the vendees, the lien retained on the personal property is good. But to affect purchasers or creditors it was necessary to bring home to them actual knowledge of its existence. The fact that the conveyance in which this bill of sale was incorporated was put to record does not affect the rights of Engeln, the subsequent mortgagee.
Before the holder of a lien upon personalty can affect a purchaser for value, or a creditor with implied notice of his lien, he must show that he had a mortgage or deed of trust which had been acknowledged or proved according to law and lodged for record anterior to the time of the purchase or the creation of the creditor's claim.
The recording of a bill of sale of personalty, or the recording of a conveyance of realty in which a bill of sale has been incorporated will not, as we have already seen, affect the purchaser or creditor with implied notice of the lien.
But Mueller insists that Engeln had actual notice of his contract for the lien. There is no direct proof of such notice. The mortgage to Engeln, which embraces the realty as well as the personalty sold by Mueller to Kniper and Nadorff, refers to the deed of Mueller, and describes the realty as the same lots that were conveyed by Mueller by deed of February 2, 1874, recorded, etc.
A vendee must take notice of the contents of a deed referred to in the conveyance under which he holds. But this rule does not require him to take notice of a fact exhibited in the deed which is wholly foreign to the subject of the reference. So far as the deed of Mueller shows the character of the title to the lots, Engeln is bound by its contents; but as it was not referred to or mentioned in connection with the personalty, and as Engeln had the right to rely on the possession of the mortgagors as sufficient evidence of their title, the law will not imply notice upon his part of the contract lien of Mueller, evidenced, as it is, by a conveyance which he had the right to suppose related exclusively to real estate.
We can not assume as a matter of fact that Engeln read the deed from Mueller merely because it is accurately described in the mortgage under which he claims. If he had...
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