Security Trust Co. v. Loewenberg

62 P. 647, 38 Or. 159, 1900 Ore. LEXIS 153

• Court: Oregon Supreme Court
• Decided: November 12, 1900
• Status: Published

Opinions

Mr. Chief Justice Bean,

after stating the facts, delivered the opinion of the court.

The question for decision is one of priority between the claim of the plaintiff banks and that of the defendants Watson and Leonard. The right of the plaintiff corporation to a prior lien for the amount due on the original loan to Loewenberg is not disputed by any of the parties. The instrument of January 5, under which the plaintiff banks claim, although not executed or acknowledged so as to make it a formal mortgage, is, nevertheless, effective as such between the parties and subsequent purchasers or attaching creditors with notice: Moore v. Thomas, 1 Or. 201; Musgrove v. Bonser, 5 Or. 313 (20 Am. Rep. 737). Unless, therefore, the defendants Watson and Leonard, as attaching creditors, are entitled to- the rights of a bona ñde purchaser for value, the plaintiff banks must prevail in this suit, because their claim is prior in time, and therefore prior in right. On behalf of the plaintiffs it is insisted that the deed of June 19, 1893, from Loewenberg and wife to- the plaintiff corporation, conveyed the legal title to* the property therein described, and that no interest remained in Loewenberg which could be levied upon under a writ of attachment; while the contention for the defendants is that the transaction amounted to nothing more than a mortgage, and simply created a lien upon the property in favor of the plaintiff corporation for the debt intended to be secured thereby. It has long been settled in this state that a deed absolute in form, but intended by the parties as security for the payment of money, or the performance of any other legal act, if accompanied by a separate defeasance, is a mortgage at law (Hurford v. Harned, 6 Or. 362; Stephens v. Allen, 11 Or. 188, 3 Pac. 168; Albany Canal Co. v. Crawford, 11 Or. 243, 4 Pac. 113; Wilhelm v. Woodcock, 11 Or. 518, 5 Pac. 202); and this seems to be the general rule on the subject. Thus, in 3 Devlin, Deeds (2 ed.), § 1101, it is stated that, “where the deed and defeasance have been executed and delivered at the same time, and form parts of one transaction, the courts have universally considered them as constituting a legal mortgage.” And in Teal v. Walker, 111 U. S. 242 (4 Sup. Ct. 420), it is said by the Supreme Court of the United States: “A deed absolute upon its face, but intended as a security for the payment of money, is a mortgage, even at law, if accompanied by a separate contemporaneous agreement in writing to reconvey upon the payment of the debt.” To the same effect, see, also, 1 Jones, Mtgs. (2 ed.), § 244; Lanahan v. Sears, 102 U. S. 318. It is also well settled in this state that a mortgage vests no title in the mortgagee, but is a mere security for the payment of a debt: Anderson v. Baxter, 4 Or. 105; Sellwood v. Gray, 11 Or. 534 (5 Pac. 196).

1. From these two rules it would seem necessarily and logically to' follow that a deed absolute in form, made to secure an indebtedness, does not convey the legal title of the land therein described to the grantee, but is nothing more than a mere lien thereon in his favor to secure the payment of the debt. Such was the opinion of Mr. Chief Justice Strahan, in Adair v. Adair, 22 Or. 115 (29 Pac. 193), and the holding of this court in Marx v. La Rocque, 27 Or. 45 (39 Pac. 401). The latter was a suit for partition of real property. The plaintiff claimed under a deed absolute in form, but intended as a mortgage, and the question was whether he had such an estate in the property as would entitle him to maintain a suit for partition. In deciding the question it is declared to be “the settled law of this state that a deed, though absolute in form, if intended by the parties as a security for a debt, is to be treated as a mortgage, as much so as if it contained a condition that the estate should revert to the grantor upon payment of the debt; and that it vests no title or right to the possession in the grantee, but simply creates a lien or incumbrance on the land,” — citing authorities. “In such case the court looks beyond the terms of the instrument to1 the real transaction, and, when that is shown, will give effect to the contract of the parties; and, whatever may be the form of the instrument, if it was executed as security for a debt, it will be treated merely as a mortgage, and the title and right to possession will remain in the mortgagor until foreclosure and sale.” See, also, Teal v. Walker, 111 U. S. 242 (4 Sup. Ct. 420); Shattuck v. Bascom, 105 N. Y. 39 (12 N. E. 283); Barry v. Hamburg Ins. Co., 110 N. Y. 1 (17 N. E. 405). It follows, therefore, that, at the time of the attachments in the actions brought by Watson and Leonard, Loewenberg was the legal owner of the property, and had an interest therein which could be seized under an attachment: Geary v. Porter, 17 Or. 465 (21 Pac. 442); Bank of Winnemucca v. Mullaney, 29 Or. 268 (45 Pac. 796); Macauley v. Smith, 132 N. Y. 524 (30 N. E. 997).

2. Now, our statute.(Hill’s Ann. Laws, § 150), provides that “from the date of the attachment until it be discharged or the writ executed, the plaintiff as against third persons shall be deemed a purchaser in good faith and for a valuable consideration of the property, real or personal, attached.” Under this section an attaching creditor is given the same standing and placed in exactly the same position as that of a purchaser from the debtor (Rhodes v. McGarry, 19 Or. 222, 23 Pac. 971; Riddle v. Miller, 19 Or. 468, 23 Pac. 807; Meier v. Hess, 23 Or. 599, 32 Pac. 755; Osgood v. Osgood, 35 Or. 1, 56 Pac. 1017) ; so that Watson and Leonard, by reason of their attachments, are entitled to- the same rights as if they had purchased the property from Loewenberg, without actual knowledge of the instrument of January 5> 1895, and are chargeable only with such notice as the record imports.

3. The pivotal question in the case, then, is the effect to be given to the record of the deed from Loewenberg to the plaintiff corporation. It purports on its face to be an absolute conveyance; and an attaching creditor, as well as a purchaser from Loewenberg, was charged with such notice of the claims of the grantee as the record imports, whether he had actual knowledge thereof or not. At the time the attachments were levied the trust company was in possession of the equitable mortgage of January 5, claiming lay authority thereof to hold the property described in the deed to it as trustee to- secure the payment of the debts due the two banks. Therefore, for the purposes of the question now under consideration, the case stands as if the equitable mortgage had been made directly to the corporation. If the record was not sufficient notice to- a purchaser from Loewenberg of the trust company’s entire claim, the attachments will, under the statute, take precedence over the rights of the plaintiff banks. In other words, if the record of the deed imports notice of nothing more than the original transaction of which it was a part, the defendants must prevail. If, on the other hand, an intending purchaser from Loewenberg would be required, by reason thereof, to ascertain by inquiry aliunde the record the nature and character of the trust company’s claim to the property, the attaching creditors were not bona fide purchasers, but were chargeable with knowledge of the instrument of January 5, 1895, because, presumably, an inquiry would have disclosed its existence, and they were so negligent in not making it as to deprive them of the rights of bona fide purchasers. Now, the record of an instrument which is duly executed, and entitled to be registered, operates as constructive notice only of the contents of the record, and whatever is deducible therefrom as a matter of law: 15 Cent. Law J. 122; Frost v. Beekman, 1 Johns. Ch. 288. By the recording act, a party dealing with real property is called upon to search the record, and is chargeable with constructive notice of what it contains within itself, and whatever an inquiry reasonably suggested by the facts recited or alluded to would have disclosed: Webb, Record Title, § 178. But it does not import knowledge of a transaction not a matter of record. The recording of a deed absolute in form, but intended as a mortgage, cannot, in the nature of things, be constructive notice of the real transaction, because it is not disclosed by the record. It is notice, however, of a claim to the property by the grantee, and affords an opportunity for an intending purchaser from the grantor to inform himself of the nature and character of such claim. There is a decided conflict in the authorities as to the effect of recording such a deed in the registry of deeds when the defeasance is not of record. There are some cases holding that it must be treated as an unrecorded mortgage, because the record does not state the truth, and because the object of the registry act is to prevent the enforcement of secret and unrecorded liens: Friedley v. Hamilton, 17 Serg. & R. 70 (17 Am. Dec. 638). But the rule adopted in this state is that such record is sufficient (Haseltine v. Espey, 13 Or. 301, 10 Pac. 423), and this must be regarded as settled law, and kept in view in determining the question.

This doctrine, however, does not proceed upon the theory that the record gives notice of the actual transaction, but upon the assumption that the record of the instrument in the registry of deeds, as said by Mr. Jones, is “notice of a greater interest than he (the grantee) actually has” (i Jones, Mtgs. [2 ed.], § 548), and therefore cannot mislead an intending purchaser from the grantor to his injury. In short, the condition of the record is such as to put one dealing with the grantor upon inquiry as .to the grantee’s claim. If he contends, or has reason to believe, that the deed is not what it purports to be, it is his duty to pursue the inquiry, and ascertain the actual claim of the grantee, and whether, notwithstanding the deed, the grantor still retains an interest in the property, and, if so, what it is. The purchaser of real property may, of course, rely upon the title as it appears of record, and will be protected against unrecorded conve}'-ances, outstanding equities, secret liens, and conditions of which he has no notice. It is for this reason that a bom fide purchaser from the grantee, in a deed recorded as such, but intended as a mortgage, is protected: Hill’s Ann. Laws, § 3029. But one who deals with real estate as the property of a party who' does not have the record title is conclusively chargeable with notice of all the rights of the holder of such title. He cannot claim to be a purchaser in good faith when the record shows that the title to the property is not in his grantor, but in some other party. The contention that giving this effect to the registry of a deed absolute in form will have a tendency to encourage secret and unrecorded liens upon real property does not appeal to us with much force. It is a cogent argument against the doctrine that the recording of a deed, intended as a mortgage in the registry of deeds, is a sufficient protection to the mortgagee. When that rule is once established, however, as it is in this state, and thus secret and undisclosed liens are sanctioned and protected, the argument loses its potency. The record of such an instrument is notice of the greatest ppssible title to real estate, and 'it could not be made any more apparent by recording subsequent mqrtgages in favor of the grantee, upon the same property. The record is sufficient to put an intending purchaser from the grantor upon inquiry, as it indicates that such grantor has no title whatever; and, if he does not pursue the investigation, he is, nevertheless, chargeable with all the facts such inquiry would have elicited. There is no merit, it seems to- us, in the contention that inquiry might not disclose the true condition of the title. If it should not, the inquirer would have performed all the duty the law imposes upon him, and would be protected against the claims of the grantee. A grantee in a deed given as security for a debt is bound to the utmost good faith towards a party dealing or intending to deal with the property as that of his grantor, and, if he does not carefully and truly disclose the true nature of his security, his rights will be postponed to those of subsequent attaching creditors or purchasers: Geary v. Porter, 17 Or. 465 (21 Pac. 442). Now, in this case, the deed from Loewenberg to the plaintiff corporation did not give notice of the nature of the real transaction, nor of the claim of the grantee therein, but it disclosed that the property had been conveyed to it unconditionally. It seems to us, therefore, that a party claiming through Loewenberg by right acquired subsequent to the recording of the deed could not refrain from making inquiry as to the nature of the grantee’s claim under such deed at the time his right attached, and so be entitled to the protection accorded a bona fide purchaser. It follows from these views that the decree of the court below must be reversed, and it is so ordered. Reversed.