
    Miller v. Ware et al.
    
    Conveyances NOTICE: recording act. The rights or title conferred by a conveyance are, as to subsequent purchasers without notice, to be determined by the instrument itself as recorded, and not by facts in pais or other instruments not recorded.
    
      Appeal from Black Bowk District Cov/rt.
    
    Thursday, June 15.
    Action in equity to quiet title, etc. Both parties appeal. The facts are stated iu the opinion.
    Boies, Allen & Couch for the plaintiff.
    
      E. K., Ware for himself and wife, defendants.
    
      O. C. Miller for defendant Jenldns.
   Cole, J.—

On the 7th day of November, 1857, Francis M. Yirden owned the land in controversy, and on that day borrowed of Luther Buck- $100, and to secure its payment, four months after date, conveyed said land to Buck by absolute deed, and took from him a bond to reconvey it upon the payment of the note. The deed was at once recorded, but the bond never was. On December 19, 1857, Yirden sold and conveyed in fee said land to John P. Tittsworth; the deed was duly recorded the same day. March 11, 1858, Buck extended the time for payment of the borrowed money till August 5, 1858; and the old note and bond were destroyed, and new ones to correspond with the extension were executed. In 1859 or I860, Buck conveyed the land to Cynthia B. Landon in payment of a debt he owed her; she having no actual notice of the deed to Tittswortb or of tbe bond to Yirden. In 1867, Yirden & Ware had negotiations about redeeming tbe land from Buck; and in tbe fall of that year, Ware, baying possession of tbe bond as one of tbe attorneys of Yirden, brought suit on it against Buck to compel a reconveyance. Soon after tbis suit was brought, Buck, in order to settle it, procured a conveyance from Mrs. Langdon to Ware, and deposited it with Ms attorney, to be delivered upon payment of Yirden’s note and tbe taxes Buck bad paid, and tbe surrender of tbe bond. Ware paid tbe money, delivered tbe bond, and took tbe deed, May 18, 1868, having at tbe time full knowledge of all the facts connected with tbis controversy. On tbe .day last named Ware sold the property in controversy to tbe defendant Jenkins for $875, and took bis notes therefor, payable respectively October 1, 1869, 1870 and 1871,' and gave him a title bond to convey on payment of notes. Jenkins entered into possession on tbe day of bis purchase and commenced to improve tbe same, they having before been vacant and unimprovedbe had no knowledge of the facts, except such constructive notice as tbe record of tbe deeds afforded. May 30, 1868, Tittswortb sold and conveyed to plaintiff who bad knowledge of all tbe facts. Tbis smt was brought September 1, 1868/

Tbe statute of limitations will not bar tbis action. If it was an action by Buck as mortgagee to foreclose bis mortgage, and Yirden, tbe mortgagor, bad pleaded the statute of limitations (Bev., § 2740), then tbe case would have been like Newman v. De Lorimer, 19 Iowa, 244. Or, if Ware, as assignee of tbe bond for title, was seeking to enforce a specific performance of it, then tbe statute might apply. But tbe mortgage has been paid off and tbe bond for title has been surrendered, and tbis is a controversy, substantially as to tbe ownership, between tbe grantee of tbe mortgagor and tbe grantee of the mortgagee, neither having been in. tbe actual possession until a short time before the commencement of this suit. If this controversy were between Mrs. Langdon, who was the purchaser in good faith, and for value, from Buck, and having no knowledge that his title, which was absolute on its face, was but a mortgage, on the one hand, and Tittsworth, the subsequent grantee of the same, on the other hand, we should have but little difficulty in holding Mrs. Langdon’s title to be the best; and this, although our statute says that the record, etc., “shall furnish constructive notice to'all the world of the rights of the grántee conferred by such instrument.” Bev., § 2223. For the rights conferred by the instrument are, as to subsequent purchasers without notice, to be determined by the instrument itself as recorded, indexed, etc., and not by facts m pads or other instruments not recorded. Any other construction would practically nullify our registry statute.

But Ware is not the holder of Mrs. Langdon’s title by purchase from her. He secured his title by arrangement or compromise with Buck, who procured from Mrs. Lang-don a reconveyance of the land from her to-Ware for the purpose of avoiding a controversy about the title; and, in view of the facts, Ware stands in precisely the situation he would stand if Mrs. Langdon had reconveyed to Buck, and Buck to Ware, who had full knowledge of all the facts, and in such case, of course, Ware would only have the title of Buck as mortgagee. But Ware, having paid off the mortgage, with his own money, is entitled to be subrogated to all the rights which Buck had as mortgagee.

It further appears that Jenkins was a purchaser from Ware, without knowledge of the defect in his title; but he has not paid any of the purchase-money, although he has made valuable improvements. It also appears that the plaintiff Miller was a purchaser with full knowledge of all the facts. Under these circumstances Jenkins’ equities are superior to Miller’s and he is entitled to have his purchase affirmed. The result is, that Jenkins must pay the purchase price according to his contract. So much thereof as is necessary shall first be applied in payment to Ware as of the Buck mortgage, interest and taxes, and the balance to Miller, both Ware and Miller being required to execute conveyances to Jenkins at the time they respectively receive the money. In case Jenkins does not pay, at his costs the property will be sold on special execution, as upon foreclosure, and the money paid over as above. Miller and Ware will each pay one-half the costs of the district comt; Miller will pay the costs of this appeal.

Reversed.  