Player v. Lippincott

19 F. Cas. 863, 4 Dill. 125, 5 Cent. Law J. 260, 1877 U.S. Dist. LEXIS 24

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: September 6, 1877
• Status: Published

Opinion

TREAT, District Judge.

The decision in the case of Sawyer v. Turpin, 91 U. S. 114, is conclusive on nearly every point in this case. The prior unrecorded mortgage for which the latter was substituted, would not be upheld if the rights of intervening mortgage creditors or vendees had arisen; but in the absence of such intervening rights, the last mortgage rests for its validity on the first. The facts connected with the two mortgages may be used to throw light on the bona tides of the parties. If the second is, as to date, to be referred to the first mortgage, for which it was substituted, then it was not made within two months of proceedings in bankruptcy. There is nothing on its face to make either mortgage void! Under the statutes of Missouri, it could have no effect as to the creditors until recorded. If any of the bankrupt’s creditors had pursued the property between August and November 18th, their demands might have prevailed over the alleged rights of the mortgagees; but no such rights existed, or, if so, were asserted. The intimation of the supreme court of Missouri, that a mortgage should be recorded within a reasonable time, has reference to cases where intervening interests arise. There is nothing on the face of either mortgage, or in the evidence, showing that the mortgagor was to have the right to sell or consume the mortgaged property for his own benefit, or, in other words, that the conveyance was for his benefit, and, therefore, void. The bill is dismissed with costs. Bill dismissed.