Kohn v. Lapham

Citations

• 13 S.D. 78
• 82 N.W. 408
• 1900 S.D. LEXIS 114

Syllabus

<p>1. Where a mortgage was executed in g-ood faith, and delivered to defendant ou July 10th, but not recorded until July 26th, and on July 11th a creditor of the mortgagor attached the property mortgaged, and filed notice of Us pendens, pursuant to Comp. Laws, g 4897, declaring that every person, whose conveyance or incumbrance is executed or recorded subsequent to the filing- of notice of Us pendens shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after filing of such notice to the same extent as if he were a party to the action, the title conveyed by the mortgage is superior to that obtained by the purchaser at execution sale under the attachment, since the provisions of that section are controlled by Section 3293, declaring that every conveyance of real property is void as against any subsequent purchaser or incumbrancer whose conveyance is first duly recorded, and do not apply to attaching creditors.</p> <p>2. Where a debtor mortgaged his property in good faith, and after the execution and delivery of the mortgage, but before it was recorded, a creditor attached the property, filing'a notice of Ms pendens, the rule that an attaching creditor only acquires such interest in the - property seized by virtue of his attachment as the debtor had at the time such proceedings were instituted, is not affected by Comp. Laws, § 4897, declaring that every person whose conveyance or incumbrance was executed or recorded subsequent to the filing- of notice of Ms pendens shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after filing- of such notice, to the same extent as if a party to the action, since the effect of such provision is that such incumbrancer is bound to the same extent as if a party to the action, and, if he were a party to the action, the attachment proceedings would be nugatory.</p>