Odd Fellows' Savings Bank v. Banton

By the Court, Belcher, J.: This is an appeal by the defendants Hammett and Kings-bury from a judgment foreclosing three mortgages, and the only question presented for determination in the case is as to the priority of the mortgage liens. The facts upon which the question arises are substantially as follows: On the 13th of January, 1873, the defendant Banton executed and delivered to the defendant Hammett a mortgage upon certain lands in the City and County of San Francisco, which was properly recorded in the office of the County Recorder of said city [606]and county on the fifteenth of the following month. At the time of the execution and the recording of the mortgage the mortgagee resided in the City of Portland, in the State of Oregon, distant six hundred and eighty-three miles from the Recorder’s office. On the 7th of February, 1873, the defendant Banton executed and delivered to the defendant Kingsbury a mortgage upon the same premises, which was duly recorded' on the twelfth of that month. At the time of the execution and recording of this mortgage the mortgagee resided at the City of Sacramento, in this State, which is distant one hundred and seventeen miles from the Recorder’s office. On the 10th of February, 1873, the defendant Ban-ton executed and delivered to the plaintiff a mortgage upon the same premises, which was duly recorded on the same day. These mortgages were all taken in good faith, for a valuable consideration, and each without notice, actual or constructive, of any previous mortgage.

Upon these facts the Court below was of the opinion that the liens of the mortgages attached to the mortgaged premises at the date and in the order of their record, and it accordingly rendered judgment that out of the proceeds of the sale of the property the plaintiff’s mortgage should be first paid, then the defendant Kingsbury’s, and last the defendant Hammett’s. Whether the Court was right in its conclusions or not depends upon the construction to be placed upon certain sections of the Civil Code.

Section twelve hundred and thirteen of that Code provides that every conveyance of real property acknowledged or proved, and certified and recorded as prescribed bylaw, from the time it is filed with the Recorder, shall be constructive notice of the contents thereof to subsequent purchasers and mortgagees.

Section twelve hundred and fourteen provides that every conveyance of real property, other than a lease for a term not exceeding one year, shall be void as against any subse