
    Davis & Watson v. Rogers.
    Mortgage; rights of junior mortgage®. The rights of a junior mortgagee cannot be defeated by any arrangement between a prior mortgagee and the mortgagor, or any adj udication of their respective rights to which the junior mortga,gee was not a party, no matter in what form the transaction constituting the mortgage consisted — ; whether in the form of an absolute deed, or in one showing the absolute legal title to be in the first mortgagee.
    
      
      Appeal from Marshall District Cov/rt.
    
    Saturday, January 8.
    Proceeding to foreclose a mortgage. Decree for plaintiff. Defendant, Rogers, appeals. Tbe facts are set out in the opinion.
    
      Henderson Bros. c& Merrima/n for tbe appellant,
    
      Boardman <& Brown for tbe appellee.
   Beok, J.

Tbe decision of this case turns upon tbe facts, which we find to be as follows: Rogers sold to Margaret A. Clark a quarter section of land in Mar--1 shall county. After the contract of sale and the receipt of tbe consideration for tbe land, no deed having been made by Rogers, he loaned Amzi B. Clark, tbe husband of Margaret, $100, and, in order to secure its repayment, it was agreed that be should retain tbe title of tbe land in himself. In pursuance of this arrangement be executed to Mrs. Clark an agreement in writing to convey to her tbe land upon tbe payment of the sum so loaned, with interest, and the further payment by her of all taxes assessed upon the land. This instrument contained conditions to tbe effect, that, in case of tbe non-performance, on the part of Mrs. Clark, she should forfeit all payments made by her, and Rogers should have tbe right to declare tbe contract forfeited and enter upon tbe land This transaction was in 1861. In tbe same year Amzi B. & Margaret A. Clark executed to plaintiff a mortgage upon eighty acres of tbe land to secure four notes, amounting to $J28.

In 1867, Clark and wife instituted an action against Rogers upon tbe agreement, asking for a conveyance of tbe land by Rogers, or judgment for tbe amount of tbe purchase-money paid therefor, in case the conveyance by Sogers could not be enforced. The suit resulted in a decree requiring Sogers to convey the land, and a judgment against him for $1,150 to be enforced in case he failed so to do. Service was had upon Sogers by publication; the land was attached and the decree directed its sale. Subsequently, Sogers settled the judgment by the payment of $450, and it was satisfied and discharged. Soon after the payment of this judgment plaintiffs commenced this suit.

The title of the land being retained by Sogers to secure money loaned to Clark, the transaction amounted to a mortgage. Such unquestionably would have been the case had Sogers conveyed the land to Mrs. Clark, and she had reconveyed for the purpose of the security. The real transaction between the parties amounts to nothing more, and their relations to each other, growing out of it, are those of mortgagor and mortgagee.

Clark and wife undoubtedly could have conveyed absolutely their interest or estate in the land, and we know of no reason why they could not mortgage it. As between plaintiffs, the mortgagees, and Sogers, no question of notice can arise, as it might between other parties. Sogers of course had notice of the Clarks’ estate in and title to the land. The relations of the parties are such as arise in case of successive mortgages. The Clarks are the mortgagors; Sogers the senior, and plaintiffs the junior mortgagees.

Sogers acquired no equities against plaintiffs by the payment of the judgment. If plaintiffs’ mortgage was valid when made, and bound the property in the hands of the Clarks, it is plain that, by no arrangement between them and Sogers, nor by any adjudication of their respective rights, plaintiffs not being parties thereto, could it be defeated. The acquisition, in such a way, by Rogers of the Clarks’ interest in the land cannot affect plaintiffs’ mortgage. As against plaintiffs he acquired the same rights, and none others, that would have been conferred in case the Clarks had conveyed the land to him.

No question can arise upon the condition of the agreement between the Clarks and Rogers, providing, that, in case of the failure of the Clarks to pay the sums provided for, the contract, at the option of Rogers, may be forfeited and he may re-enter and take possession of the land. We need not determine whether this condition could have been enforced. The judgment against Rogers, and his payment thereof, precludes him from setting tip, in this action, the protection of that condition, if it could under other circumstances be enforced.

The court finds that the indebtedness to Rogers, secured upon the land, together with certain sums expended by him for taxes thereon, had not been paid by the Clarks; and declares that one-half thereof shall be a prior lien upon the land conveyed by the mortgage, which is one-half of the land described in the contract between Rogers and the Clarks, and directs that such sum be first paid from the proceeds of the sale of the land. Rogers has no cause to complain of this order. It is as favorable to him as the rules of equity will allow. No question is made as to the amount of the judgments in favor of either plaintiffs or Rogers.

These views dispose of the case. Other points made by appellant’s counsel need not be considered. The decree of the District Court is

Affirmed.  