Commercial Bldg. & Loan Co. v. Foley ( 1927 )

MIDDLETON, J.

1. Wheie a first mortgage on real property is released on the record by the mistake of the recorder and thereafter the property is mortgaged to a second mortgagee and sold to purchasers, all of whom relied upon the record and did not know of the mistake, the first mortgage may be foreclosed against the second mortgagee and the purchasers, since none of the parties are at fault and all are equally protected by statutes, and in ?this situation the oldest claim must prevail.

2. Where owners of mortgaged real property paid interest and dues.on the mortgage knowing it to be unsatisfied,, they might not complain of the foreclosure of the mortage, whether or not they knew that the mortgage had been released on the record.

(Mauck, J., concurs. Sayre, PJ., not participating.)

For reference to full opinion, see Omnibus Index, last page, this issue.