Edwin Morris, Plaintiff and Appellant, v. Salmon I. Beecher, Charles R. Dean, Eugene V. McKnight, George S. Barnes, Elizabeth McKnight}}, et al., Defendants and Respondents.
1. Mortgages—Satisfaction; Reinstatement; Priority.
Mortgagee in a lost, and for that reason unrecorded, mortgage, having executed and recorded an instrument certifying that such mortgage had been paid and satisfied, cannot reinstate the prior lien of his mortgage as against an innocent assignee for value of a second mortgage, who buys relying upon the satisfaction as an extinguishment of the prior mortgage, although the mortgagees in the second mortgage knew of the unrecorded mortgage, and took their lien expressly subject to it.
2. Same; Notice.
The fact that, about the time of the execution and recording of the satisfaction, another mortgage for about the same amount as the unrecorded mortgage, given to the same mortgagee, by one who had assumed the unrecorded mortgage, but given subsequently to the second mortgage, was executed and recorded, is not sufficient to put the purchaser of the second mortgage upon inquiry as to whether the unrecorded mortgage had in fact been paid and satisfied, as against the recorded satisfaction given by the first mortgagee, although such substituted mortgage recites that the property is free from all incumbrances.
(Opinion Filed May 12, 1890.)
APPEAL from district court, Cass county; Hon. Wm. B. McConnell, Judge.
W. P. Miller and. Ball & Smith, for the appellant, argued: When a new mortgage is substituted for an old one, in ignorance of an intervening lien, the old mortgage may be restored and given its original priority; citing, Jones on Mtgs. vol. 2, § 971; Bruce v. Nelson, 35 Iowa 157; Rump v. Gerkins, 59 Cal. 496; Geib v. Reynolds, 28 N. W. Rep. 923; Pomeroy’s Equity, vol. 2, § 849; Fergusson v. Glassford, 35 N. W. Rep. 820. Beecher and Dean contracted for a lien inferior to that of plaintiff, and therefore have no equity superior to plaintiffs rights. Barnes took his assignment from Beecher subject to all equities existing against the latter; citing, [[Westerbrook v.
