Barber v. . Wadsworth , 115 N.C. 29 ( 1894 )

The mortgage to Susan J. Dudley having been recorded, the purchaser of the property or any part thereof from the mortgagor or his grantee took the same subject to the mortgage. Had the mortgage debt been paid, this would have discharged the mortgage by its terms; but there has been no payment in this case. The mortgage could, therefore, only have been released so as to affect purchasers at a sale under the mortgage by a cancellation on the margin of the registration thereof (The Code, sec. 1271), or by a reconveyance of the mortgaged property duly recorded. Neither was done. The defendants purchased at the sale under the mortgage, without notice of any unrecorded release of the timber right by the mortgagee, and, of course, got a good title. That one of the purchasers subsequently, before taking the deed, had notice of an unrecorded release, executed by the mortgagee, as to the timber right, could not affect his rights acquired by virtue of the purchase at the mortgage sale. Indeed, had both the defendants had notice of the unrecorded release, even before the mortgage sale and their purchase thereunder, no notice, however full, would have supplied (33) the failure to record the release. (Quinnerly v. Quinnerly,)114 N.C. 145.

In the latter case the unregistered conveyance was not merely, as here, a release of a part interest in the property, but at first mortgage on the whole property, and it was held, citing the authorities, that the second mortgagee, who first recorded his mortgage, obtained priority, though he had the fullest notice of the unregistered first mortgage. And this is independent of ch. 147, Acts 1885, which, copying the identical words of The Code, sec. 1271, makes, by its very terms, the unrecorded release by the mortgagee of 23 April, 1888, of no validity as against the registered conveyance to the defendant purchasers under the mortgage sale. Upon the case agreed, judgment should have been entered in favor of the defendants.

Reversed.

Cited: Hooker v. Nicholas, 116 N.C. 161; Ford v. Green, 121 N.C. 76;Patterson v. Mills, ib., 267; Blalock v. Strain, 122 N.C. 286; Piano Co.v. Spruill, 150 N.C. 569.