Murray Co. v. Satterfield , 125 Ark. 85 ( 1916 )

Wood, J.

(after stating the facts). At the time Daeus & Fulton .executed the mortgage to Satterfield on the machinery in controversy they had no title to such machinery, for the undisputed evidence shows that they purchased under a written contract in which the title to the machinery was to remain in the Murray Company until notes for the purchase money and a mortgage to secure the same were executed and a cash payment made. The mortgage to Satterfield was dated February 11, 1913, and the mortgage (Exhibit B2) to the Murray Company and part payment of the purchase money was of date March 6, 1913. Dacus & Fulton acquired no absolute title to the property until the latter date. At that date however, by complying with the condition of the contract of sale in executing the notes and mortgages and paying part of the purchase money, they did acquire title to the machinery. Andrews v. Cox, 42 Ark. 473; Butler v. Adler-Goldman Com. Co., 62 Ark. 450; Starnes v. Boyd, 101 Ark. 469.

In the mortgage to appellee the property in controversy on which the court granted appellee a first hen was definitely described, and was also included under the words “all machinery that may hereafter be added to said premises.” It is a well settled rule that “ a mortgage may be made to cover future acquired property of a mortgagor when an intention to that effect clearly appears from the the face of the instrument and it will be enforced against the mortgagor and all others except purchasers for value without notice.” 27 Cyc. 1040. Kline v. Ragland, 47 Ark. 111; Williams v. Cunningham, 52 Ark. 439; Morton v. Williamson, 72 Ark. 390.

Therefore, when Dacus & Pulton acquired title to the property in controversy that title inured to the benefit of Satterfield under his mortgage. But the mortgage to the Murray Company was simultaneous with the vesting of the title to the machinery in Dacus & Pulton.

In Western Tie & Timber Co. v. Campbell, 113 Ark. 570, we held (quoting syllabus): “A purchase money mortgage must be given simultaneously with the execution of the deed of conveyance in order to take precedence over prior liens, for if there is any intervening space of time during which the title rests in the purchaser the prior hens attach to it in preference to the mortgage.”

There was no intervening space of time here in which the title to the property rested in Dacus & Pulton before they conveyed the same, under their mortgage, to the Murray Company, but the latter company allowed the title to rest in Dacus & Pulton for over two months before recording its mortgage. The case we have, therefore, under the facts, is that of two independent mortgages on the same property, given to different mortgagees. While both the mortgages were good as between the parties, neither of the mortgagees acquired a lien as against third parties until the mortgages were filed for record. Kirby’s Digest, § 5396.

(1-2.) In the absence of countervailing equities, the rule as to priority as between two independent mortgages on the same property, given to different mortgagees, is that the one first filed for record is a superior lien to the other, whether it was executed before or after such other. See 27 Cyc. 1192-94. But this rule is so qualified as to allow a vendor who executes a deed and simultaneously takes a mortgage, a reasonable time in which to file his mortgage for record. See Beers v. Hawley, 2 Conn. 467.

Under the peculiar facts of this record the issue as to the priority of these mortgages should be determined by the diligence displayed by appellant to comply with the statute in order to give third parties notice of the existence of its mortgages. Satterfield filed his mortgage for record nine days after it was executed, whereas the Murray Company waited from one to two months before recording its mortgages. Therefore, if the mortgages were treated as having been made to the respective mortgagees on the same day, it is undoubtedly trué that Satterfield appears to have exercised the greater diligence in complying with the statute in perfecting his lien and giving notice to others of the existence thereof, and his mortgage should be treated as prior in time to the mortgages of appellant.

No special circumstances are shown on the part of the appellant to excuse or justify it in waiting for so long a time to have its mortgages recorded. It allowed the title to remain in the mortgagor for an unreasonable length of time before perfecting its lien by having its mortgages recorded. In the meantime Satterfield had placed his mortgage upon record, and should be entitled to priority of lien. In Thornton v. Findley, 97 Ark. 432-437, we used this language: “For, if the title rests even for a short time in the vendee, with no valid lien thereon in favor of the vendor, then the prior lien secured by another on such property will have precedence over a mortgage subsequently secured by the vendor.” That is the principle that controls here and determines the issue in favor of the appellee Satterfield, for as we have already observed the Murray Company allowed the title to rest in the vendee Daeus & Fulton an unreasonable time before recording its mortgage.

(3.) While the property on which the court decreed a first lien in favor of the appellant was not in existence at the time the mortgage to the appellee was executed, yet this property was added to the premises of the mortgagors, and a lien was thereby created in equity in favor of the appellee under that clause of his mortgage which specifies “also all machinery that may hereafter be added to said premises.” The lien was good and en-forcible as between the parties to the mortgage. Apperson v. Moore, 30 Ark. 56; Jarratt v. McDaniel, 32 Ark. 598; Delta Cotton Co. v. Ark. Cotton Oil Co., 80 Ark. 431; Howell v. Walker, 111 Ark. 362, 372.

When appellee’s mortgage was placed on record this gave notice to the world of all of his rights, legal and equitable, under the mortgage. His mortgage created an equitable hen on the property when it was attached to the premises and as it was placed on record before appellant gave notice or had its mortgage recorded, it follows from what we have already said that appellee acquired a superior hen to appellant in the property described in the decree as lot 3, to wit: One Murray Cleaner complete, with transient and pulley; four seventy-saw huller gin breasts complete; one hydraulic ram complete; one Brunham hydraulic pump; one set hydrauhe pump fittings.

The decree therefore in favor of the appellee on the appeal of the Murray Company is affirmed, while the decree in favor of the Murray Company against the appellee is reversed on appellee’s cross appeal, and the cause is remanded with directions to enter a decree in favor of the appellee giving him a superior hen to the appellant on the property mentioned in the decree as property known as lot 3, as above described, and for further proceedings not inconsistent with this opinion.