Bank of Ukiah v. Petaluma Sav. Bank

35 P. 170, 100 Cal. 590, 1893 Cal. LEXIS 837

• Court: California Supreme Court
• Decided: December 28, 1893
• Docket: No. 15022
• Status: Published

Opinion

Temple, C.

Appeal from the judgment. A simple question of law is presented by this appeal. The learned judge of the trial court, in an opinion which respondent has printed in his brief, presents that question thus: “Will the lien of an unrecorded mortgage, given to secure a loan, take precedence over an attachment or judgment lien obtained after the execution of the mortgage ? There is no law in this state which requires conveyances to be recorded. Section 1217 of the Civil Code provides that ‘an unrecorded instrument is valid as between the parties thereto and those who have notice thereof.’ This section implies that a mortgage, though unrecorded, is a lien upon the real estate mentioned therein, and our supreme court has said that the mortgage lien attaches when the instrument is executed though recorded afterwards. (Root v. Bryant, 57 Cal. 48; Walker v. Buffandeau, 63 Cal. 312.)”

The mortgage covered property situate in Sonoma county and also property in Trinity county. It was recorded in Sonoma, but not in Trinity. Shortly after it was executed, appellant brought suit against the mortgagors and caused an attachment to be levied on the land in Trinity county.

Subsequently a judgment having been obtained, a transcript of the original docket was filed with the recorder of Trinity county as provided in section 674 of the Code of Civil Procedure. The judgment was rendered July 3, 1890, and this suit was commenced to foreclose plaintiff’s mortgage May 14, 1891, which was after the levy of the attachment and the filing of the judgment docket. The trial court held that the lien of the judgment was subject to the lien of the mortgage, and defendant appeals.

The lien being created by the mere execution and delivery of the mortgage, the néxt question is whether the lien is lost as to a judgment or attaching creditor because the mortgage is not recorded. It is enough to say that the statute does not so provide. The mortgage unrecorded is only declared void as against subsequent purchasers or mortgagees, for value and in good faith. (Civ. Code, sec. 1214.)

An attaching creditor takes only whatever interest the debtor has. “An attachment and the levy of an execution or a judgment lien are not much different, and an attachment creditor cannot be considered as a bona fide purchaser. The creditor is entitled to the same rights as the debtor had, and to no more.” (Pingrey on Mortgages, sec. 665. See also Foorman v. Wallace, 75 Cal. 553.)

I find some cases from other states, which at first view seem to sustain the position of appellants. So far as I have examined such cases they all depend upon some statutory provision which is wanting here. In some states an unrecorded instrument is made void as to creditors under certain circumstances.

I think the judgment should be affirmed.

Haynes, C., and Searls, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

McFarland, J., De Haven, J., Fitzgerald, J.