Without examining the evidence in detail, it is sufficient to say, that we do not feel called upon to reverse this judgment, for the reason that the jury were not warranted by the evidence to find the facts as they did by their verdict.
The principal questions arise upon the instructions. The instruction given for the plaintiff, and to which exception was taken, is this: “ If the jury believe, from the evidence, that the mortgage by Ambrose to Root was given to secure the payment of the purchase money paid for the farm in question, and that the giving of the deed to Ambrose and the mortgage to Root by Ambrose was one transaction, then the mortgage was a lien, and had preference over the judgment against Ambrose, and the jury should find for the plaintiff, provided the jury believe, from the testimony, that the defendant, Curtis, had notice of such mortgage, and the purpose for which it was given prior to the time he purchased the land in question.”
It is a principle of law too familiar to justify a reference to the authorities, that a mortgage given for the purchase money of land and executed at the same time the deed is executed to the mortgagor, takes precedence of a judgment against the mortgagor. The execution of the deed and of the mortgage being simultaneous acts, the title to the land does not for a single moment rest in the purchaser, but merely passes through his hands and vests in the mortgagee without stopping at all in the purchaser, and during such instantaneous passage the judgment lien cannot attach to the title. This is the reason assigned by the books, why the mortgage takes precedence of the judgment rather than any supposed equity which the vendor might be supposed to have for the purchase money; though that consideration may have originated the rule, at the first. Indeed, nearly all the cases to be met with, are cases where the mortgage has been given to the vendor and for the purchase money. Such was not the case before us. The facts were, that the lands were purchased with goods, which might be considered as equitably belonging to the mortgagee, and which the mortgagor sold to the vendor for the land with the consent of the mortgagee, so that in substance the transaction was the same as if the purchase money had been paid by the mortgagee, who took the mortgage to secure himself for the purchase money thus advanced, and the jury have found, and we think properly, that the execution of the deed and mortgage were simultaneous acts. This brings the case within the letter and the equity of the rule as first stated. In point of right and principle, it can make no difference whether the mortgage is given to the vendor for the purchase money, or to another who actually advances the means to pay the purchase money to the vendor. It is unnecessary now to .say whether a mortgage to a third person for an independent consideration and having no connection with the purchase of the land, but executed at the same time with the deed, would occupy the same position or not. The instruction was properly given.
The defendant asked the court to give this instruction to the jury, “That the judgment in favor of Weed & Co., against Ambrose, was a lien upon the land described in the declaration, the moment the title to said land was acquired by said Ambrose, and no subsequent mortgage or conveyance thereof, by Ambrose, could destroy the lienwhich the court gave with this qualification : “ This is the law, unless the jury believe from the evidence, that the mortgage by Ambrose to Root was given to secure the payment of the purchase money paid for the land in question, and that the giving of the deed to Ambrose, and the mortgage to Root, was one transaction, and that the defendant, Curtis, had notice of such facts prior to his purchase of said landto which the defendant excepted. If we are right in the conclusion to which we have arrived upon'the instruction given for the plaintiff, then the court was right in adding this qualification, for it asserts the same principle of law.
The fourth instruction asked by the defendant was this: “ If a party having a claim to lands, stand by and allow the same to be sold to another, without objecting or making known his claim, he is estopped from afterwards setting up such claim against the rights of the purchaser at such salewhich the court gave with this explanation: “ This is the law in relation to property, the title to which is not made a matter of record, and by the law made constructive notice of such right or title when recordedto which the defendant excepted. This instruction might well have been refused altogether, as having no foundation‘in the evidence, and as being inapplicable to the case. There was no pretense of any fraudulent concealment for the purpose of inducing the purchaser at the execution sale to buy a bad title. The defendant in the execution had an equity of redemption in the land, which was a saleable interest on the execution. The mortgagee had placed his mortgage on record, which was notice to all the world of the mortgage; and neither the mortgagee, if present at the sale, nor any one else, had any right to suppose that anything but the equity of redemption was being sold, and certainly the mortgagee was not bound to go there and proclaim that nothing but the equity of redemption could be sold. We find no error in the record, and the judgment must be affirmed.
Judgment affirmed.