Parrish v. Mahany

• Decision Date: 20 December 1899
• Citation: 81 N.W. 295,12 S.D. 278
• Parties: PARRISH et al. v. MAHANY et al.
• Court: South Dakota Supreme Court

81 N.W. 295

12 S.D. 278

PARRISH et al. v. MAHANY et al.

Supreme Court of South Dakota

December 20, 1899

On rehearing.

Former opinion (73 N.W. 97) modified, and judgment affirmed.

Gamble & Dillon, for appellants. Bartlett Tripp and Robert B. Tripp for respondents.

HANEY J.

This is an action to foreclose a real-estate mortgage executed by the defendants Mahany and wife. Respondent Wright claims the property under a conveyance executed and recorded prior to the execution and recording of plaintiffs' mortgage. The issues are stated in our former decision (10 S.D. 276, 73 N.W. 97), wherein it is held that respondent Wright's deed must be regarded as having been recorded when it was first deposited with the register of deeds, notwithstanding it was subsequently withdrawn from the register's office without respondent's authority or consent, before it was actually spread upon the records. Adhering to this conclusion, it will be observed that when plaintiffs' mortgage was executed the records disclosed a warranty deed from Cunningham (the common source of title) to respondent Wright, executed August 14, 1885, recorded April 14, 1887, and a warranty deed from Cunningham to Mahany, executed April 2, and recorded April 11, 1887. Plaintiffs were incumbrancers in good faith, for value, without actual notice of respondent Wright's prior conveyance, and without actual notice that her deed was recorded when their mortgage was taken.

Having decided that respondent's deed shall be deemed to have been recorded when plaintiffs parted with the consideration of their mortgage, this court concluded that if Mahany, their mortgagor, purchased "in good faith, and for a valuable consideration, he was the owner of the land, and the lien of plaintiffs' mortgage is superior to the claims of the respondent; if he did not so purchase the property, he had no title whatever, and respondent's rights are paramount to those of the mortgagees"; and that, in the absence of any findings as to whether Mahany purchased in good faith and for value, it would be presumed that he did so purchase the premises. Upon this presumption the judgment of the trial court was reversed. Parrish v. Mahany, supra. Subsequently a rehearing was granted for the purpose of again considering whether or not such presumption should prevail in the determination of this appeal. In the court below and upon the original argument in this court plaintiffs relied upon the contention that they were incumbrancers in good faith, for value, and that their mortgage was first recorded; hence attention was not given to the question now under discussion and it did not receive the consideration its importance merited, in our former decision. As to whether or not a subsequent purchaser under a deed is presumed to be a bona fide purchaser for value, without notice, the authorities are conflicting. See note to Anthony v. Wheeler (Ill Sup.) 17 Am. St. Rep. 288 (s. c. 22 N.E. 494); Sillyman v. King, 36 Iowa, 207; Colton v. Seavey, 22 Cal. 496; Pricket v. Muck (Wis.) 42 N.W. 256; Bank v. Fox (Cal.) 51 P. 11. Were this a contest between Mahany and the respondent Wright, there would be reasons for holding that he should be presumed to have purchased in good faith, for value, and without notice, which cannot be invoked in favor of the plaintiffs. When the conveyance to Mahany was executed, the record title was in Cunningham, respondent's deed not then having been recorded. When plaintiff's mortgage was taken, respondent's conveyance was of record. Plaintiffs had record notice that Mahany's title was in doubt, and, as was stated in our former decision, "the...