Young v. Thompson , 2 Kan. 83 ( 1863 )

By the Court,

Kingman, <L

This' is a petition in error brought to reverse a judgment of the District Court of Douglas County.

The suit was brought by the defendant in error, Charles L. Thompson, to obtain a money judgment and a foreclosure of a mortgage given to secure the payment of a note given by T. H. Cierno to Hamilton G. Eant or order, and by Fant assigned to Thompson. This note and mortgage were dated March 9, 1858. Young was made a defendant as claiming some interest in the land.

Young answers setting up a subsequent mortgage by Clemo and wife of tbe premises to him, and a foreclosure sale and deed to bimself under such mortgage; and further, that the mortgage to himself was made in good faith for a valuable consideration, and without any notice of any pre-existing or prior lien or incumbrance on the mortgaged premises, but that the mortgage by Clemo to Fant was in the form of an absolute deed of conveyance, and that a defeasance was at the same time executed by Fant to Clemo to the effect that on the payment by Clemo to Fant of the money due on the note, that Fant should re-convey the premises to Clemo. That the absolute deed of conveyance from Clemo to Fant was duly recorded, b.ut that the defeasance was not recorded.

To the answer of the defendant Young, Thompson filed a general demurrer, setting up as a ground of objection that the answer did not state facts sufficient to constitute a defense to the plaintiff’s petition. This demurrer was sustained, but at a subsequent day of the term and before the trial the order sustaining the demurrer was so modified as to show that the Court only decided that the answer is insufficient to postpone the plaintiffs right in the mortgaged premises, and make it subject to the claim of the defendant Young. But the answer is allowed to stand as a statement of the interest of Young in the premises, as subsequent mortgagee.

The Court on the final hearing, gave judgment in favor of plaintiffs for the full amount claimed in his petition, and ordered the mortgaged premises to be sold and the proceeds arising from the sale to be applied in satisfaction of Thompson’s claim.

It is claimed that the Court below erred in sustaining the demurrer and in the assessment of the amount due from Clemo to Thompson. The ruling of the Court on the demurrer in the shape which was finally given to it, raises the question whether the recording of the deed without the defeasance was such a registration under the law as to give to defendant in error a prior lien on the premises. If it was, then the ruling of the Court though somewhat irregular, still was the application of the true principles of the law of the case, and we have no doubt on this point.

The deed from Clemo to Fant was absolute on its face, purported to convey the whole estate of Clemo to Fant. It was prior to that of Young and was duly recorded before Young obtained any interest in the land. It was constructive notice to all that Clemo had parted with his title to the land. Upon what principle then can Young complain that the estate is subject to redemption ? The deed seemed absolute, but when the whole transaction is developed it makes it a mortgage, and gives Young some further rights than he had before.

It gives him a possible chance to secure his debt, while without the defeasance there would be none. The recording of the defeasance was the duty of Clemo; he had it in his possession; it could not be recorded or controlled by Fant or his assignee. It protected only the rights of Clemo, not those of Fant. If when Young bought he believed it was an absolute deed he had no title to acquire from Clemo. If he knew it was a mortgage then he must yield to the acknowledged priority of Thompson’s lien. It is impossible to see how he could have been injured by the non-recording of the defeasance.

This question has been settled in Iowa in the case of Clemons vs. Elder, 12 Iowa, 274, holding the recording of the defeasance not necessary in a case exactly similar to this. The authorities cited turn upon the peculiar phraseology of the recording statutes different from those in force here when these instruments were executed.

This Court in the case of Dudley vs. Reynolds, has already passed upon the law involved in the second assignment of error. We see no cause for reversing the reasoning in that case, and do mot doubt its application ■ to the present one. In considering that case we bad the benefit of the argument of the learned counsel for the plaintiff in error in this cause. We think the Court below ruled correctly in the assessment of the amount due.

The decision of the Court below is affirmed.

Bailey J., concurring, Cobb C. J., having decided the cause in the Court below, declined to sit in the case.