Slaker v. McCormick-saeltzer Co.

SLOSS, J.

In May, 1912, Nannie R. Prick executed and delivered to plaintiff, Slaker, a mortgage of real property to secure her promissory note for one thousand dollars. The mortgage was not recorded until January 4, 1916. In the

[388]

meanwhile, the appellant, the McCormick-Saeltzer Company, commenced an action against Nannie R. Frick and her husband, and levied an attachment on the mortgaged property. It recovered judgment in the action. Execution was issued, and the appellant purchased the property at the execution sale. A certificate of sale was issued to appellant on November 10, 1915, and was recorded prior to the recording of plaintiff’s mortgage.

Thereafter plaintiff commenced an action to foreclose his mortgage, making the Fricks and the McCormick-Saeltzer Company parties defendant. The latter appeared, filing an answer and a cross-complaint. The court gave a decree of foreclosure against the Fricks. The decree adjudged “that this court has no jurisdiction to determine in this case the legal question involved as to the priority of the respective liens or claims of the plaintiff and said defendant, the McCormick-Saeltzer Company, a corporation, in, upon, and to the premises described in said mortgage,” and followed this clause with an adjudication that plaintiff recover nothing from the McCormick-Saeltzer Company, and that the latter recover nothing from plaintiff. Following the trial of the foreclosure suit, this action was brought by plaintiff to establish the priority of its mortgage over the claims of the appellant. Judgment went in plaintiff’s favor, and the McCormick-Saeltzer Company appeals.

Passing, for the moment, the questions arising from the prosecution of the foreclosure suit, it is clear that plaintiff’s rights were properly held superior to those of the appellant. If appellant had had no notice of plaintiff’s unrecorded mortgage prior to its purchase on execution, its certificate, being first duly recorded, would have prevailed. (Civ. Code sec. 1214;

Cady

v.

Purser,

131 Cal. 552, [82 Am. St. Rep. 391, 63 Pac. 844].) But the benefits of the recording statute are not available to a subsequent purchaser or encumbrancer who takes with actual notice of a prior, though unrecorded, instrument. (Civ. Code, sec. 1217;