Schmidt v. Hoyt

A judgment is now a lien upon phattles real or leasehold estate, from the time of its being dock» etted : 2 R. S. 359, § 3. lb. 360, § 12. In this respect the l.aw is altered. Formerly, an execution was necessary to bind this species of property. Yet, it makes no difference in regard to the present question. An unregistered mortgage, always had a preference over a subsequent docketted judgr ment: Jackson v. Dubois, 4 J. R. 216. Although mortgages are put upon the same footing as all other conveyances of real estate with respect to the necessity of recording them, yet they are valid, without being recorded, for all purposes, except that *653,of preserving their liens against bona fide purchasers and their priority over subsequent mortgages. The statute only declares that, “ every conveyance” (which includes mortgages) •“ of real estate, within this state, hereafter made, shall be recorded in the office of the clerk of the county where such real es. “ tote shall be situated; and every such conveyance not so re? .“ corded, shall be void as against any subsequent purchaser “ in good faith and for a valuable consideration, of the same “ real estate or any portion thereof, whose conveyance shall be “ first duly recorded : 1 R. S. 756. § 1.” A judgment creditor is not embraced in the word “ purchaser lb. 732. § 37. The rule, therefore, is still the same as was laid down in the case of Jackson v. Dubois.

It is unnecessary to .consider, whether the circumstance of the mortgage being given for a part of the purchase money is • entitled to any weight. I apprehend it has not. It certainly is not a case within the statute, which declares that a mortgage given to secure purchase money shall be preferred to a previous judgment obtained against a purchaser: 1 R. §. 749. § 5. Here, the judgment was obtained after the purchase and the giving of the mortgage, but prior to its being recorded. The equitable lien for the purchase money was merged in the mortgage ; and the complainant is now confined to his remedy and to the rights which this gives to him : but, in my opinion, he is entitled to a priority of payment out of the mortgaged premises. Decree accordingly.