Naudain v. Fullenwider

• Decision Date: 30 June 1904
• Docket Number: 13,456
• Citation: 100 N.W. 296,72 Neb. 221
• Parties: THOMAS N. NAUDAIN, JR., APPELLEE, v. HERBERT R. FULLENWIDER ET AL., IMPLEADED WITH WILLIAM D. MIXTER, APPELLANT
• Court: Nebraska Supreme Court

100 N.W. 296

72 Neb. 221

THOMAS N. NAUDAIN, JR., APPELLEE, v. HERBERT R. FULLENWIDER ET AL., IMPLEADED WITH WILLIAM D. MIXTER, APPELLANT

No. 13,456

Supreme Court of Nebraska

June 30, 1904

APPEAL from the district court for Garfield county: JAMES N. PAUL JUDGE. Reversed with directions.

Reversed with directions.

Doyle & Berge, for appellant.

C. H Balliet, contra.

OPINION

HOLCOMB, C. J.

The right of the plaintiff, appellee, to the enforcement of a lien on the real estate in controversy, lying in Garfield county, arises by virtue of a mortgage executed on the 20th day of July, 1901, by one Herbert R. Fullenwider. The appellant, Mixter, who was a defendant below, claims a lien on the same land under an order of attachment issued in a certain action then pending in Lancaster county and resulting in a judgment in his favor, wherein he was plaintiff and one John C. Fullenwider was defendant, which was on the 21st day of May, 1901, levied on the same real estate described in plaintiff's mortgage as the property of the attachment debtor. A copy of the order of attachment and of the return of the sheriff making the levy was duly filed in the office of recorder of deeds of Garfield county and recorded in the proper record on the same day the levy was made. On the 23d day of May following, a deed purporting to have been executed by the attachment debtor John C. Fullenwider to Herbert R. Fullenwider and bearing date May 3, 1901, was presented and duly filed for record and recorded in the office of the said recorder of deeds. Afterwards and on the 20th of July, the mortgage above mentioned was executed in favor of the plaintiff. In view of the foregoing circumstances, it is clear that the mortgagee when he accepted the mortgage under which he claims, took it charged with notice of the interest and rights of the attachment creditor by virtue of the levy of the order of attachment on the real estate as the property of the attachment debtor, and subject to any infirmities inhering in the title of the mortgagor, Herbert R. Fullenwider, by reason of the time and manner in which he acquired his title and interest in and to said land. When the mortgage was executed, the records of Garfield county, wherein the land was situated, disclosed that the order of attachment at the suit of the appellant had been levied on the land as the property of the attachment debtor and while the legal title, as appeared by the records, was in his name, and some two days prior to the time the mortgagor had recorded his deed evidencing a conveyance of the land from the attachment debtor to himself. The mortgagee had constructive if not actual notice of the then state of the public records and must be deemed to have acquired a lien subject to whatever rights the attachment creditor acquired therein prior thereto, and to stand in no more favorable light than would the mortgagor claiming under his deed from the attachment debtor.

In determining the respective rights of the parties to the controversy, regard is to be had to the rule that a prior unrecorded deed passing title to real estate, made in good faith and for a valuable consideration, will take precedence of an attachment or judgment, if such deed be recorded before the deed based upon such attachment or judgment. Harral v. Gray, 10 Neb. 186, 4 N.W. 1040; Mansfield v. Gregory, 11 Neb. 297, 9 N.W. 87; Hargreaves v. Menken, 45 Neb. 668, 63 N.W. 951; Peterborough Savings Bank v. Pierce, 54 Neb. 712 724, 75 N.W. 20; Westervelt v. Hagge, 61 Neb. 647, 659, 85 N.W. 852. The pith of the present controversy is with respect to the question of the good faith of the transaction whereby John C. Fullenwider transferred or attempted to transfer title to the real estate in controversy from himself to his son Herbert R. Fullenwider who afterwards executed the mortgage which is now assailed by the attachment creditor. And this question presents a dual aspect. Was the transaction a bona fide sale of the land and, if so, when was the deed actually delivered to the grantee? The determination of these questions requires a consideration and weighing of the evidence and an ascertainment of the proper inferences to be drawn therefrom. The case comes here by appeal and for a trial de novo. We are, says the statute, to reach a conclusion independent of and without reference to the conclusion reached in the trial court. The evidence in the case is partly in the form of depositions and partly from witnesses who appeared in court and before the trial judge on the hearing therein. Having due regard to the fact that the trial court possesses an advantage over a reviewing court in the consideration and weighing of evidence of witnesses who appear before the court in the trial of a cause, we are to...