The facts in this case are not intricate and all appear from the stipulation as to the facts signed by the parties.
They are to this effect. On June 19, 1930, to effect an exchange of lands, Davidson conveyed to Crowe the tract of land he was exchanging, which tract of land so conveyed is situated in Mississippi county. Crowe did not pay the sum of $3,600 which was a part of the consideration, and suit was brought to declare and foreclose a vendor's lien. This suit was brought in Mississippi county, in which county the land is located on which it was sought to enforce a lien. Crowe, who was a resident of Arkansas county, sought prohibition against the Mississippi chancery court, on the ground that he had not been sued in the county of his residence. This writ was denied. Crowe v. Futrell, 186 Ark. 926, 56 S.W.2d 1030.
Thereafter, the foreclosure suit proceeded to decree, and it was adjudged that a lien existed in Davidson's favor for the unpaid purchase money, and the decree directing the foreclosure of this lien was affirmed upon the appeal to this court. Crowe v. Davidson, 189 Ark. 414,72 S.W.2d 763. It would appear, therefore, not to be open to question that Davidson did have a lien when he filed the suit to foreclose it. *Page 1067
Davidson filed this suit to foreclose his lien on October 15, 1932, and it is stipulated that notice lis pendens was properly given. On May 8, 1931, Crowe executed a mortgage to Blackwood, but Blackwood did not file his mortgage for record until January 3, 1933, at which time Davidson's foreclosure suit was pending and his lien protected by the lis pendens notice.
The statement in the majority opinion that Davidson kept secret from Blackwood the fact that $3,600 of the purchase money had not been paid, is based solely upon the tenth paragraph of the agreed statement of facts that "Blackwood had no knowledge, actual or constructive, of the existence of said contract at the time of the execution and delivery to him of the trust deed by Crowe and his wife conveying said property." It is not intimated, either in the transcript or in the briefs of counsel, that Davidson concealed any fact from Blackwood. It is stipulated only that Blackwood was unaware of Davidson's lien when he took the mortgage.
Blackwood had no lien on this land until he filed his mortgage for record. Section 9435, Pope's Digest, reads as follows: "Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder's office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage."
Blackwood's mortgage did not, therefore, constitute a lien as against Davidson, a third party, until it was filed for record. Thornton v. Findley, 97 Ark. 432,134 S.W. 627, 33 L.R.A., N.S., 491.
It has been frequently held that, while a mortgage is good between the parties, though not acknowledged and recorded, it constitutes no lien upon the mortgaged property as against strangers unless it is acknowledged and filed for record, even though they may have actual notice of its existence. Main v. Alexander, 9 Ark. 112, 47 Am. Dec. 732; Jacoway v. Gault, 20 Ark. 190, 73 Am. Dec. 494; Ringo v. Wing, 49 Ark. 457, 5 S.W. 787; Leonhard v. Flood, 68 Ark. 162, 56 S.W. 781; Smead v. Chandler,71 Ark. 505, 76 S.W. 1066, 65 L.R.A. 353; Rhea v. Planters' *Page 1068 Mutual Ins. Assn., 77 Ark. 57, 90 S.W. 850; Morgan v. Kendrick, 91 Ark. 394, 121 S.W. 278; Western Tie Timber Co. v. Campbell, 113 Ark. 570, 169 S.W. 253, 134 Am. St. Rep. 78. There are later cases to the same effect.
Blackwood's mortgage did not, therefore, become a lien as against Davidson until January 3, 1933, the date on which it was filed for record. It was then as much a lien, but not more so, than if it had been executed, acknowledged and recorded on January 3, 1933. But on that date Davidson's foreclosure suit was pending, and was protected by the lis pendens notice.
The case of Oil Field's Corporation v. Dashko,173 Ark. 533, 294 S.W. 25, discussed the purpose and effect of the lis pendens notice. It was there said: "The effect of filing for record of the lis pendens notice, under the statute, is to protect the rights of the plaintiff in the action against those who may acquire title to or liens on the property from the defendant after the lis pendens notice has been filed for record. The filing for record of the lis pendens notice cannot have the effect to deprive bona fide purchasers of the property purchased before notice of lis pendens was filed for record. If one in good faith purchases real estate from a defendant in an action before the filing for record of the lis pendens notice, a failure to record the evidence of his title thus acquired until after the lis pendens notice has been filed for record will not have the effect to deprive him of his title or give the plaintiff in the action superior right or title. The plaintiff in the action, by recording the lis pendens notice, cannot acquire any greater right in the property than the defendant had therein at the time the lis pendens notice was filed. In other words, a lis pendens notice operates prospectively to preserve all the rights of the plaintiff as against the defendant in the litigation from the time the lis pendens notice is filed for record. But it cannot operate retroactively to divest the title of one to whom the defendant had conveyed the property prior to the filing of the lis pendens notice for record, even though such person has not recorded his muniment of title until after the filing for record of the lis pendens notice." *Page 1069
Now, of course, as the lis pendens notice operates prospectively only, recording that notice could not operate to deprive Blackwood of any lien which he then had; but at that time he had no lien, as he had not recorded his mortgage. The equities of the case are with Davidson. He had a vendor's lien before Blackwood took his mortgage. That Davidson did have a lien is the point expressly decided in the case of Crowe v. Davidson, hereinabove cited, and suit to enforce this lien had been filed with proper lis pendens notice long before Blackwood filed his mortgage for record.
The effect of the majority opinion is to hold this unrecorded mortgage superior to this vendor's lien, notwithstanding suit to enforce the vendor's lien was pending, with proper lis pendens notice of record before the mortgage was filed for record which, I think, should not be done, and I, therefore, respectfully dissent.