Page images
PDF
EPUB

Sec. 638. Alabama. (See Vol. 2, § 563.) Actual notice to a judgment creditor of a conveyance, within thirty days from its date, does not obviate the necessity of its record, and validate it as to such creditor. Winston v. Hodges, Fla. (15 So. Rep. 528).

Sec. 639. Iowa. (See Vol. 2, § 576.) The holder of a mechanic's lien is not a "subsequent purchaser for a valuable consideration," within the meaning of Iowa Code, § 1941, providing that no instrument affecting real estate is valid, as against such purchaser, unless recorded. Fletcher v. Kelly et al., Ia. (55 N. W. Rep. 474; 21 L. R. A. 347).

Sec. 640. Maryland. (See Vol. 2, § 581.)

Where the in

strument is such a one as is required to be recorded, the recording is necessary to pass title. Nickel v. Brown, 75 Md. 172 (23 Atl. Rep. 736).

Sec. 641. Massachusetts. (See Vol. 2, § 582.) The stat

ute does not make an unrecorded lease invalid as between the parties thereto. Mass. (37 N. E. Rep. 780).

Co.,

for more than seven years Anthony v. N. Y. P. & B. R.

Sec. 642. Nebraska. (See Vol. 2, § 588.) Where the same grantor executes two mortgages at different times, the mortgage last executed and delivered, if first properly filed for record, will take precedence of the prior mortgage, provided it is based upon a valuable consideration and taken in good faith without any notice of the prior mortgage. Burrows v. Hoveland, 40 Neb. 464 (58 N. W. Rep. 947). For construction of § 4349, Neb. Stat., see, Levisey v. Brown, 35 Neb. 111 (52 N. W. Rep. 838).

Sec. 643. New York. (See Vol. 2, § 593.) A daughter to whom her father conveys a farm worth $20,000 in consideration of $10, which is paid, and of her undertaking to pay the net proceeds of the place to him during his life, and after his death a certain portion thereof to his wife and other daughter, is not "a purchaser in good faith and for a valuable consideration," within the meaning of the recording act, so as to entitle her deed to prevail over a prior unrecorded conveyance by the father. Ten Eyck v. Whitbeck, 135 N. Y. 40 (31 N. E. Rep. 994; 31 Am. St. Rep. 809).

Sec. 644. North Carolina. (See Vol. 2, § 594.) In this state all conveyances have priority from the time of their registration irrespective of the time of their execution, or any question of notice. Quinnerly v. Quinnerly, 114 N. C. 145 (19 S. E. Rep. 99); Allen v. Bolen et al., 114 N. C. 560 (18 S. E. Rep. 964). The statute applies as well to purchasers at sheriff's sale with actual notice as to purchasers from the bargainor or lessor. Cowen v. Withrow, 112 N. C. 736 (17 S. E. Rep. 575). An agreement between cotenants as to a division of the proceeds of the sale of their lands, thereafter to be made, and an authority to

one of them to take the control and management of certain sales of lands for the parties, is not a conveyance of land, nor contract to convey, nor lease of land, within the meaning of N. C. Acts 1885, ch. 147, § 1. Lenoir et al. v. Valley River Min. Co., 113 N. C. 513 (18 S. E. Rep. 73). Acts 1885, ch. 147, applied to a particular state of facts. Maddox v. Arp, 114 N. C. 585 (19 S. E. Rep. 665); Philips v. Hodges, 109 N. C. 248 (13 S. E. Rep. 769); Cowen v. Withrow et al, 109 N. C. 636 (13 S. E. Rep. 1022); Cowen v. Withrow et. al., 111 N. C. 306 (16 S. E. Rep. 397). In applying Code, § 1254, it is held that a purchase-money mortgage is not entitled to priority over a second mortgage which is filed first, though the second mortgagee has notice thereof. Quinnerly v. Quinnerly, 114 N. C. 145 (19 S. E. Rep. 99).

Sec. 645. Pennsylvania. (See Vol. 2, § 599.) The legislature of 1893 passed a general act, requiring all deeds affecting any lands in the state to be recorded within ninety days from the date of execution and unless so recorded that "shall be adjudged fraudulent, and void against any subsequent purchaser or mortgagee for a valid consideration, or any creditor of the grantor or bargainor." Laws, 1893, p. 109. For construction and application of this statute, see, Davey v. Ruffell, 162 Pa. St. 443 (29 Atl. Rep. 894). In construing the old statute it is held that a mortgage executed and recorded before a deed of the same premises is recorded has priority over the deed, though the deed was recorded within six months from its execution, and the mortgage was not. Mitchell & Williams, J. J., dissenting. Fries v. Null et al., 154 Pa. 573 (26 Atl. Rep. 554).

Sec. 646. South Carolina. (See Vol. 2, § 601.) Gen. Stat. § 1776 does not apply in a contest between two claimants where both of their conveyances were recorded after the expiration of forty days, and each had notice of the other. Summers v. Brice, 36 S. C. 204 (15 S. E. Rep. 374). An instrument with all the requisites of a mortgage, except a seal, is not entitled to be recorded. Arthur v. Screven et al., 39 S. C. 77 (17 S. E. Rep. 640).

Sec. 647. Virginia. (See Vol. 2, § 607.) A deed not recorded within twenty days is void as to creditors whose rights have attached before it was recorded. Waring et al. v. Betts, 90 Va. 46

(17 S. E. Rep. 739).

Sec. 648. Wisconsin. (See Vol. 2, § 610.) Rev. Stat. § 2241 applied to a particular state of facts. Taggart v. Warner, 83 Wis. 1 (53 N. W. Rep. 33.)

REDEMPTION.

EPITOME OF CASES.

Sec. 649. As to the right to redeem.

One having an interest in mortgaged premises, and who would be a loser by foreclosure, was held to have a right to redeem. Frisbee v. Frisbee, 86 Me. 444 (29 Atl. Rep. 1115). A court of equity has the discretion, governed by the equities of each case, to name terms on which it will let in a party to redeem. Hannah et al. v. Davis et al., 112 Mo. 599 (20 S. W. Rep. 686). It is held that the widow of a mortgagor has such an interest in the mortgaged premises as to give her the right to redeem. Phelan v. Fitzpatrick, 84 Wis. 240 (54 N. W. Rep. 614). This case is supported by McGough v. Sweetzer, 97 Ala. 361 (12 So. Rep. 162). It is held that a sale and conveyance of mortgaged premises by a mortgagee or trustee acting under power, though defectively executed, passes the legal estate to the purchaser subject to the right of redemption. Lanier v. McIntosh, 117 Mo. 508 (23 S. W. Rep. 787; 38 Am. St. Rep. 676). It is held that where a landowner conveys land by deed of trust to secure debts and subsequently conveys it in fee subject to the deed of trust and expressly reserves a lien for the purchase-money, his legal representative upon his death, by reason of such lien interest, may redeem from the foreclosure of the deed of trust. Pearcy v. Tate, 91 Tenn. 478 (19 S. W. Rep. 323). Where a junior mortgagee foreclosed his mortgage upon a part of the land covered by a senior mortgage, and in addition to such foreclosure, obtained a personal judgment against his mortgagor, such junior mortgagee has a right to redeem as to all his mortgagor's property, affected by a judgment in favor of the senior mortgagee. Bowen et al. v. Van Gundy, Sheriff et al., 133 Ind. 670 (33 N. E. Rep. 687). Where the holder of a mortgage pledged to him as collateral, forecloses the mort

Burgess v.
The right

gage and makes the mortgagee a defendant, and obtains a decree foreclosing the rights of all the defendants, and the pledgee buys the property at the foreclosure sale and obtains his deed therefor, he holds title free from any right of redemption on the part of the mortgagee. Anderson v. Olin et al., 145 Ill. 168 (34 N. E. Rep. 55). Upon a suit to redeem from a voidable sale under a trust deed a decree was rendered allowing the creditor to redeem within a limited time, and declaring that on failure to redeem within that time the title acquired by the sale should "stand confirmed and unimppeached" and the debtor failing to redeem within that time, but having his title to the land sold at sheriff's sale more than three years thereafter, neither the debtor nor the purchaser at sheriff's sale have any further right to redeem. Ruggles et al., 146 Ill. 506 (34 N. E. Rep. 1036). to redeem from a sale under a trust deed cannot be claimed solely on account of the fact that the debt secured provided for an usurious rate of interest. Ferguson v. Soden et al., 111 Mo. 208 (19 S. W. Rep. 727; 33 Am. St. Rep. 512). A judgment creditor's right to redeem is not affected by the fact that he was a party to the judicial proceedings resulting in the sale from which he seeks to redeem. Boynton v. Pierce, Ill. (37 N. E. Rep. 1024). Rights of judgment creditor to redeem from an absolute conveyance made by his debtor to secure debts discussed, Swift v. Lucas, 92 Ga. 796 (19 S. E. Rep. 758). Cases involving particular facts involving the right of redemption, Lapsley v. Howard et al., 119 Mo. 489 (24 S. W. Rep. 1020); Hart v. Seymour, 147 Ill. 598 (35 N. E. Rep. 246); Union Mut. Life Ins. Co. v. Kirchoff, 133 Ill. 368 (27 N. E. Rep. 91); Lawson v. Hunt,

Ill. (38 N. E. Rep. 629); Karr v. Peacock, 137 Ill. 367 (25 N. E. Rep. 849).

Sec. 650. Rights of several successive lien holders. The sale on a second lien, whether made before or after that on a first lien, has the effect, unless it is itself cut off by the first sale, or unless it is redeemed from, to cut off all liens and interests subject to it. While there are still rights of redemption outstanding the lien upon which redemption is made is not merged and extinguished in the title of the purchaser at

the sale redeemed from, but it passes by subrogation to any subsequent redemptioner. The lien upon which a redemption is made is not extinguished by the fact that the value of the property is equal to the amount of the lien, with the amount paid for redemption added. Lowry v. Akers, 50 Minn. 508 (52 N. W. Rep. 922).

A subsequent lienholder cannot be deprived of his right to collect his debt by redemption, to the extent of the value of the property over the amount paid to redeem, by the interposition of the liens of fraudulent and simulated securities. But, if thereby prevented from redeeming, his damages would not exceed the amount of his debt. In a case where a lien creditor redeems from a prior lienholder and redemptioner, and the property is ample security for all the liens, the court will not, at the instance of such subsequent lienholder, undertake to inquire into the validity of amount due on prior liens in order to enhance the value of the property in the hands of the last redemptioner. Parker v. St. Martin et al., 53 Minn. 1 (55 N. W. Rep. 113). Where a second or junior redemptioner, having a lien, reasonably redeems from a senior creditor, who has previously made redemption from the purchaser at a mortgage sale upon a lien valid on its face, and had received a certificate of redemption, and the purchaser had accepted the redemption money, it was held, that such second redemption must be deemed valid, though it turned out that the senior creditor had not in fact a valid lien. Todd v. Johnson, 56 Minn. 60 (57 N. W. Rep. 320). The effect of a redemption by a junior judgment creditor from a foreclosure sale is to vest in him the title acquired at such sale. Ill. Rev. Stat. 1874, ch. 77, §§ 20-24, applied. Smith v. Mace, 137 Ill. 68 (26 N. E. Rep. 1092); Herdman et al. v. Cooper et al., 138 I11. 583 (28 N. E. Rep. 1094). A premature redemption by a third junior incumbrancer is not void, the second junior incumbrancer not making any attempt to redeem, and the debtor acquiescing in the redemption. Sprandel v. Houde, 54 Minn. 308 (56 N. W. Rep. 34).

Sec. 651. Construction of statutes. Redemption statutes will not be given a retroactive effect (Kans. Laws 1893, ch. 109) construed. Greenwood v. Butler, Kans. (34

« PreviousContinue »