Schultze v. Houfes

Citations

• 96 Ill. 335
• 1880 Ill. LEXIS 38

Syllabus

<p>1. Deed oe trust—not a lien until money loaned is received. The mere recording of a deed of trust to secure a loan of money does not create a lien upon the property, where the money has not, in fact, been received by the borrower. It becomes a lien against the rights and equities of a third person under a prior unrecorded mortgage, or trust deed, only from the time the money is, in fact, received.</p> <p>2. Recording daw—priority of conveyances. The owner of real estate gave a deed of trust to A to secure a prior indebtedness to B, which was left with the trustee to be placed on record. Afterwards C, in good faith, made a loan to the owner, taking notes and a second deed of trust to A to secure the same, which was placed on record, but no money was, in fact, paid by C to the borrower until some ten or twelve days after the recording, and the prior trust deed was recorded on the same day the money was advanced upon the second trust deed to C: Held, that, under our recording law, neither of the trust deeds could be regarded as prior to the other, and that, as the legal and equitable rights of B and C were equal, the equities of B, being first in point of time, must prevail over those of 0.</p> <p>3. Same—good as notice though not delivered. It is immaterial whether a deed of trust was delivered to the trustee or not before it is recorded, to affect a subsequent purchaser with notice of the equities of the cestui que trust in the land therein conveyed.</p> <p>4. Costs—discretionary in equity. The awarding of costs in suits in equity is a matter of discretion in the court below.</p>