This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
- (a) Valuable consideration. In order to claim priority as against one whose rights have first accrued, one must be a purchaser, for value, and one who receives a conveyance based on a merely "good," as distinguished from a "valuable," consideration, takes subject to all prior conveyances or incumbrances. It is a principle of equity, independently of statute, that such a purchaser takes subject to prior equities, but the recording acts usually in terms require a conveyance to be recorded only as against purchasers for valuable consideration, and, even in the absence of such an express declaration, the statutes have ordinarily been so construed.57
One is not a purchaser for a valuable consideration, unless he has parted with money or money's worth in consideration of the conveyance,58 that is he must, as a consideration for the conveyance, have done some act by reason of which, if the conveyance were set aside, he would be in a worse pecuniary position than before.59 For this reason, an agreement by the grantee to support the grantor is not a valuable consideration, if it is in effect merely a condition on which he can retain the title, or merely a promise to pay, which would become ineffective in case of lack of title on the part of the vendor.60 But the assumption by the purchaser, as a part of the price, of a debt due by his vendor to a third
56. Ante, Sec. 569, note 54.
57. See 2 Pomeroy, Eq. Jur. Sec.Sec. 656, 746-751; 1 Stimson's Am. St. Law, Sec. 1611; Webb, Record of Title, Sec. 204.
58. Frey v. Clifford, 44 CM. 335; Doss v. Armstrong, 6 How. (Miss.) 258; Strong v. Whybark, 204 Mo. 341, 12 L. R. A. (N. S.) 240, 120 Am. St. Rep. 710, 102 S. W. 968; Ten Eyck v. Witbeck, 135 N. Y. 40, 31 Am. St. Rep.
809, 31 N. E. 994
59. Boon v. Baines, 23 Miss. 136.
60. Doe v. Doe, 37 N. H. 268. For a like reason, it does not seem that there is a valuable consideration accruing to the grantor merely because his conveyance contains the reservation of an easement in his favor. But Aden v. City of Vallejo, 139 Cal. 165, 72 Pac. 905, Is contra.
Person, whereby he becomes absolutely obligated to the latter, constitutes a valuable consideration.61
- (b) Pre-existing debt. By the very decided weight of authority, one who takes a mortgage or deed of trust to secure a pre-existing debt, without at the time relinquishing any right or claim as a consideration for the mortgage, is not a purchaser for value.02 Occasional decisions, however, assert that the mortgagee is in such case protected as against a prior unrecorded conveyance. This view is occasionally based upon the fact that the recording act does not in terms mention a valuable consideration as essential to the protection of a subsequent purchaser,63 and occasionally upon the theory that such a mortgagee is a purchaser for valuable consideration.64 So far as this latter view may be sought to be supported by reference to the rule adopted in many jurisdictions, that the indorsee of a negotiable instrument, taking it as security for a pre-existing debt, takes it free of equities or defenses between prior
61. Jackson v. Winslow, 9 Cow. (N. Y.) 13; Warren v. Wilder, 114 N. Y. 209, 215, 21 N. E. 159; Watkins v. Reynolds, 123 N. Y. 211, 25 N. E. 322; Citizen's Bank of Parker v. Shaw, 14 S. Dak. 197, 84 N. W. 779; Henderson v. Pilgrim, 22 Tex. 464; Essex v. Mitchell, - Tex. Civ. App. - , 183 S. W. 399.
62. People's Sav. Bank v. Bates, 120 U. S. 556, 30 L. Ed. 754; Jones v. Robinson. 77 Ala. 499; Haldiman v. Taft, 102 Ark. 45, 143 S. W. 112; Hubert v. Merchants' Bank,137 Ga. 70. 72 S. E. 505; Gilchrist v. Gough 63 Ind. 576, 30 Am. Rep. 250; Senneff v. Brackey, 165 Iowa, 525, 146 N. W. 24; Goodwin v. Mas-cachusetts Loan & Trust Co., 152 Mass. 189, 25 N. E. 100; Box-heimer v. Gunn, 24 Mich. 372;
Schumpart v. Dillard, 55 Miss. 361; Weaver v. Barden, 49 N. Y. 286; Union Nat. Bank of Osh-kosh v. Oium, 3 N. D. 193, 44 Am. St. Rep. 533, 54 N. W. 1034; Mcgrath v. Cowen, 57 Ohio St 385, 49 N. E. 338; Adamson v. Souder, 205 Pa. 498, 55 Atl. 182; Brown v. Vanlier, 7 Humph. (Tenn.) 239; Spurlock v. Sullivan, 36 Tex. 511; Mcdonald 4c Co. v. Johns, 62 Wash. 521, 33 L. R. A. (N. S.) 57, 114 Pac. 175; Funk v. Paul, 64 Wis. 35, 54 Am. Rep. 576, 24 N. W. 419.
63. Hayner v. Eberhardt, 37 Kan. 308, 15 Pac. 168; Dorr v Meyer, 51 Neb. 94, 70 N. W. 543.
64. Frey v. Clifford, 44 Cal. 335; Cammack v. Soran, 30 Gratt. (Va.) 292; Chapman v. Chapman, 91 Va. 397, 50 Am. St Rep. 846, 21 S. E. 813; Gilbert parties, it seems appropriate to quote the statement of a high tribunal that "the rules established in the interests of commerce to facilitate the negotiation of mercantile paper, which, for all practical purposes, passes by delivery as money, ought not, in reason, to embrace instruments conveying or transferring real or personal property as security for the payment of money."65
If, as a consideration for the giving of a mortgage or deed of trust to secure a pre-existing debt, the creditor relinquishes other security for the debt, he is in a position to claim as a purchaser for value,66 as he is if he extends the time for the payment of the debt.'67
One who takes an absolute conveyance of land in satisfaction of a pre-existing debt, he relinquishing all claim on the debt, is in some jurisdictions regarded as entitled to claim as a purchaser for valuable consideration,68 while in other jurisdictions he is not so rebros. & Co. v. Lawrence Bros., 56 W. Va. 281, 49 S. E. 155.
65. People's Sav. Bank v. Bates, 120 U. S. 556, 30 L. Ed. 754, per Harlan, J. And see, to the same effect. Haldiman v. Taft, 102 Ark. 45, 143 S. W. 112.
66. Richardson v. Wren, 11 Ariz. 395, 95 Pac. 124, 16 L. R. A. (N. S.) 190; Wilson v. Knight, 59 Ala. 172; Fitzpatrick v. Papa, 89 lnd. 17; Mccleery v. Wakefield, 76 Iowa, 529, 2 L. R. A. 529, 41 N. W. 210; Hinds v. Pugh, 48 Miss. 268; Lane v. Logue, 12 Lea. (Tenn.) 681. See Farmers' Merchants' Nat. Bank v. Wallace, 45 Ohio St. 153, 12 N. E. 439.