Merrill v. Luce

Citations

• 6 S.D. 354
• 61 N.W. 43
• 1894 S.D. LEXIS 157

Syllabus

<p>1. An assignment of a real estate mortgage is a proper instrument for record. Comp. Laws, sec. 4360.</p> <p>2. Such, mortgage and the assignment thereof are “conveyances” within the meaning of the term as used in sections 3293, 3294, Comp. Laws, which provide that “every conveyance of real property * * * is void as against any subsequent purchaser or incumbrancer * * * of the same property or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded,” and “the term ‘conveyance’ as used in the last section, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged or incumbered, or by which the title to any real property may be affected, except wills, etc.</p> <p>3. The effect of these sections is to make an unrecorded assignment of a mortgage void as to subsequent purchasers or incumbrancers of the mortgaged premises in good faith and for a valuable consideration, whose conveyances are first recorded.</p> <p>4. Where a real estate mortgage, given to secure a non-negotiable note, is assigned to a purchaser of the same, who fails to put such assignment on-record, and the mortgagee, notwithstanding such assignment, forecloses such mortgage, sells the mortgaged premises, and the subsequent grantee of the mortgagor redeems the same within the statutory time, without notice or knowledge of such assignment, but in good faith relying upon the record and the right of the mortgage to so foreclose, such grantee and redemptioner takes the title to the mortgaged premises free from the lien of such mortgage.</p> <p>5. One who, under the same conditions, furnishes money to make such redemption, taking a mortgage upon the premises to secure the. same, takes his mortgage thereon, freed from the lien of the first mortgage.</p> <p>(Syllabus by the Court.</p>