Gould v. Wise

Garoutte, J. Upon the sixth day of March, 1888, appellant, Wise, entered into an agreement with Charles O. and Asa Adams to convey to them certain land. Upon March 12, 1889, Charles Adams, one of the parties to the agreement, transferred his interest in the property to his co-purchaser, Asa Adams. On the same day, Asa Adams, having procured the deed from his co-purchaser, applied to appellant, Wise, for a deed of the premises contracted for, representing to him that he would pay one thousand dollars cash, which, together with five hundred dollars which had been paid at the date of the execution of the contract, would amount to fifteen hundred dollars paid on the purchase price, and that he would execute the mortgage provided for in the agreement aforesaid for the balance. Appellant at the time was weak and infirm from old age and sickness, and was conveyed by Asa Adams in a vehicle to the office of a notary, and there the deed and the notes and mortgage set forth in the cross-complaint herein were executed in the manner hereinafter stated. Before the payment of the one thousand dollars, Adams, without the consent of Wise, took the deed from the notary’s office, presented it to R. W. Poindexter, a real estate agent who was loaning money for the deceased, Julia F. Gould, and there executed the note and mortgage set forth in plaintiff’s complaint. He thereupon returned to the notary’s office, where Wise was awaiting him, executed the notes and mortgage to Wise, and gave him a check for the cash payment, and Wise thereupon had his mortgage recorded. Prior to this time, Poindexter went to the recorder’s office, recorded the deed from appellant to Adams, and also the mortgage given to plaintiff. Ap[534]pellant was ignorant of the transaction between Adams and Poindexter, and had no notice whatever concerning plaintiff’s mortgage. When respondent's mortgage became due, he commenced this action, and impleaded therein appellant, Wise, who answered, and filed his cross-complaint seeking to foreclose his mortgage, and claiming that it was prior and superior to plaintiff’s mortgage.

The sole question involved in this case arises as to the relative priority of these respective mortgages. Upon the trial, judgment went for the respondent, and this appeal is prosecuted from that judgment, and from the order denying a new trial.

We will not enter into a discussion of the question whether the contract of sale constituted an equitable mortgage lien of which the respondent had constructive notice, and which continued down to and merged in the mortgage made to Wise under the provisions of his contract. The case can be disposed of, and therefore should be disposed of, upon much more simple grounds.