Mather v. Jenswold

72 Iowa 550

• Court: Supreme Court of Iowa
• Decided: March 21, 1887
• Status: Published

Opinions

Seevers, J.

In 1878 one Post executed a mortgage on real estate to Ormsby, trustee for one Simmons. Post conveyed tbe real estate to Nance subject to the mortgage, and tbe latter conveyed to Lord subject to tbe mortgage. In May, 1883, Taylor & Pros, recovered a judgment against Lord, and caused an execution thereon to issue, and the land was sold and purchased by Taylor Bros., in July, 1883. In October, 1883, Lord applied to tbe plaintiff for a loan of money for the purpose of paying tbe Simmons mortgage, and tbe plaintiff made him a loan,for that purpose, and Lord executed to him a mortgage on tbe same'real estate on which the Simmons mortgage was alien. Afterwards tbe sheriff conveyed tbe real estate to Taylor, tbe purchaser of tbe land at tbe execution sale, and Taylor, for a valuable consideration, conveyed it to tbe appellee. When tbe plaintiff toob bis mortgage, and tbe Simmons mortgage was satisfied, be bad no knowledge of tbe Taylor judgment or sale thereunder. Such judgment, however, was of record and duly indexed. Tbe facts above stated are not controverted, as we understand tbe record. Tbe plaintiff asks that tbe cancellation and satisfaction of tbe Simmons mortgage be set aside, and that be be subro-gated to tbe rights of Simmons, and tbe mortgage foreclosed, upon tbe ground that tbe defendant bad knowledge of the plaintiff’s subsequent mortgage, and that, as tbe payment was made with money be loaned Lord without knowledge of tbe judgment, therefore tbe Simmons mortgage should be held to inure to bis benefit.

I. It seems to us to be immaterial whether the defendant had knowledge of the plaintiff’s mortgage or not. Conceding that he had, he may be a bad-faith purchaser, and therefore the plaintiff’s mortgage, although subsequent in point of time to the judgment, should be held to be superior to the lien of the judgment. Put, as the plaintiff' does not ask a foreclosure of his mortgage, we are unable to see how the fact, conceding it to be such, that defendant, and also Taylor, when they purchased the real estate, had knowledge of the plaintiff’s mortgage, is material in this action. We therefore decline to consider the evidence bearing on this question. It is proper, however, to say that the defendant denies that lie had such knowledge.

II. The only question in the case is whether the plaintiff is entitled to have the satisfaction of the Simmons mortgage set aside, and that he be subrogated to all the rights of Simmons. It seems to us that he is not entitled to such relief. The plaintiff made the loan to Lord for the express purpose of paying the Simmons mortgage, and it was well understood that the plaintiff was to accept a new mortgage. The plaintiff got all he bargained for. There was no mistake, except that the plaintiff failed to exercise the diligence required in the examination of the records, and therefore failed to discover the existence of the judgment and sale thereunder. No one can be blamed, but he must suffer loss simply because he was negligent. There is no principle which will allow him to take advantage of that, to the injury of the diligent. Wormer v. Waterloo Agricultural Works, 62 Iowa, 699, and authorities cited; Weidner v. Thompson, 69 Id., 36.

AFFIRMED.