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Simmons v. Stum

    Citation

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    Bloomberg Law

    Brief Fact Summary. McHenry executed a mortgage to Stum (Plaintiff) in September 1874, which was to secure the payment of seven promissory notes of $100 each due on the 1st of March starting in 1876. Plaintiff brought this complaint to foreclose the mortgage for the non-payment of the note due in 1879. The mortgage was recorded on March 15, 1879, but McHenry conveyed it in 1878 to another and it was subsequently conveyed to the Defendant.

    Synopsis of Rule of Law. The instrument recorded first takes priority according to the recording laws.

    Facts. McHenry executed a mortgage to Plaintiff in September 1874, which was to secure the payment of seven promissory notes of $100 each due on the 1st of March starting in 1876 and each consecutive March 1st thereafter. Plaintiff brought this complaint to foreclose the mortgage for the non-payment of the note due March 1, 1879. The mortgage was recorded on March 15, 1879, and that previously, on November 7, 1878, McHenry conveyed, with notice of the mortgage, the premises to Cochran and Strong, and that, on March 13, 1879, Cochran and Strong conveyed the premises, allegedly without notice of the mortgage, to Simmons (Defendant). The conveyance to Defendant by Cochran and Strong was without consideration and was allegedly for the purpose of defrauding the Plaintiff. The Plaintiff prevailed at trial and the Defendant appealed.

    Issue. Was the Defendant on notice of such facts regarding the transaction as might put a prudent person on inquiry?

    Held. The court answered the question on grounds other than notice. Decree Affirmed.
    The deed to Defendant from Cochran and Strong was executed on March 13, 1879. That deed was not introduced into evidence and there is no evidence to show what date the deed was recorded.
    The mortgage was recorded by Plaintiff on March 15, 1879, and thus, if Defendant Simmons failed to record her deed until after the mortgage was recorded, the deed to Simmons would stand subordinate to the mortgage.
    The instrument recorded first takes priority according to the recording laws.
    The evidence failed to show that Simmons’ deed was recorded prior to the mortgage. Therefore, the mortgage is to be given priority as a lien against the premises.

    Discussion. The court was apparently not going to give effect to the questionable transactions of Cochran, Strong and the Defendant. The court decided to utilize the recording statute to ascertain ownership.


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