The question here presented is not controlled by any former decision of this court. Section 8267 provides in part that "every mortgage of real property made, acknowledged, and recorded, as provided by the laws of this state, is thereafter good and valid as against the creditors of the mortgagor or owner of the land mortgaged, or subsequent purchasers or encumbrancers, from the time it is so recorded until eight years after the maturity of the entire debt or obligation secured thereby, and no longer, unless the mortgagee, his heirs, executors, administrators, representatives, successors or assigns shall, within sixty days after the expiration of said eight years, file in the office of the county clerk and recorder where said mortgage," etc., "an affidavit * * *."
Prior decisions of this court cited in the majority opinion have to do only with the validity of a mortgage where no renewal affidavit was filed, as against subsequent purchasers or encumbrancers. Here we are brought to the question as *Page 467 to the effect of the failure to file a renewal affidavit as against a creditor. The word "subsequent," as used in the statute, qualifies the words "purchasers" and "encumbrancers," and not creditors. (Pierson v. Hickey, 16 S.D. 46,91 N.W. 339.) Here, Mary E. Gutensohn was a creditor, and as to her the mortgage of plaintiff was void for failure to file the renewal affidavit, unless the fact that before the expiration of the eight years and sixty days she took a mortgage alters her status as a creditor. The fact that she took a mortgage to secure her antecedent debts did not deprive her of her status or benefits as a creditor. The statute when speaking of subsequent encumbrancers does not mean those who take encumbrances in consideration of an antecedent indebtedness. Such an encumbrancer is still a creditor and entitled to the benefits of the statute as a creditor. (Blumauer v. Clock, 24 Wash. 596, 64 P. 844, 85 Am. St. Rep. 966; Smith v. Allen, 78 Wash. 135, 138 P. 683, Ann. Cas. 1915D, 300; Belcher v. Young, 90 Wash. 303,155 P. 1060; Dempsey v. Pforzheimer, 86 Mich. 652, 49 N.W. 465, 13 L.R.A. 388.)
Under the statute, notice to the creditors of the existence of the antecedent mortgage does not alter the situation. (CompareGriffiths v. Thrasher, 95 Mont. 238, 26 P.2d 983.)
While there appears no good reason for declaring the unrenewed mortgage void as against "creditors," even though they became such while the mortgage was good and valid, and void as against only those purchasers and encumbrancers who became such after the expiration of the period for filing the renewal affidavit, yet we must construe the statute as written.
I think the judgment of the trial court was correct and should be affirmed.
Motion for rehearing denied November 13, 1934,
MR. CHIEF JUSTICE CALLAWAY and MR. JUSTICE ANGSTMAN dissenting. *Page 468