McGuire v. Barker

Two questions are made in this record. First, is a paper in all respects and in form a common mortgage, anything but a mortgage, because it is. stipulated therein that the mortgagee may advertise and sell within thirty days after the debt is due, unless paid ? and secondly, when such paper is not recorded as a mortgage, is it good against a subsequent deed conveying title without actual notice of the prior conveyance ?

1. In regard to the first question, we hold that- the paper is a mortgage with power to sell in the mortgagee, and nothing more. For the purposes of this case, it is certainly so, for it was foreclosed as a mortgage, and the issue is whether the land is subject to the fi.fa. issued upon the judgment of foreclosure. Unless it is a mortgage, the fi. fa. is proceeding illegally, and the plaintiff has no case.

2. In regard to the second point, the statute fixes it. The Code, §1957, declares that mortgages not recorded in time are postponed to purchases made subsequently to their date, but before the record, and without notice of the morgage. This purchase was made after the mortgage, and without notice, and before its record. It can make no difference that the deed of purchase was not itself recorded in twrnlve months. It conveyed the title as against this mortgage, and that is the sole question here.

Judgment affirmed.