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 .
Apart from the recording acts, a mortgage made by the owner of land would ordinarily take priority over any conveyance or mortgage thereafter made by him. If the prior mortgage involves a transfer of the legal title, as it usually does in some states,44 the mortgagor having thus disposed of the legal title to one person cannot thereafter dispose of it to another.45 And even in those states in which a mortgage does not involve a transfer of the legal title, it ordinarily creates, it seems, a legal, as distinguished from an equitable, lien,46 and such a legal lien could not be displaced by the action of the mortgagor in subsequently conveying the legal title or in creating another lien. It is only when the mortgage creates an equitable lien merely that a subsequent pur40. Redman v. Purrington, 65 Cal. 271, 3 Pac. 883; Walker v. Dement, 42 111. 272; McLean's Appeal, 103 Pa. 255.
41. Morgan v. Kline, 77 Iowa, 681, 42 N. W. 558.
42. Ante, Sec. 630(b).
43. See Bank of England y. Tarleton, 23 Miss. 173.
44. Ante, Sec. 598.
45. Ante, Sec. 566(a).
46. See articles by Professor Edgar N. Durfee, 10 Mich. Law Rev. 587, 11 Id. 495.
Chaser or mortgagee acquiring the legal title can assert priority, and this he can do only if he is a purchaser or mortgagee for value without notice.47
The foregoing remarks as to the question of priority apart from the recording acts have but little practical application in this country, for the reason that a mortgage is, in all the states, within these acts and consequently, if not recorded, is invalid as against a subsequent purchaser or mortgagee for value without notice, provided, in many of the states, the conveyance to such subsequent purchaser is recorded before the prior mortgage is recorded.48 And, on the other hand, by force of the recording acts, a subsequent purchaser or mortgagee, even though for value, takes subject to a duly recorded mortgage, as affected with constructive notice thereof, though actually ignorant of its existence.49
A mortgagee of land is a "purchaser" within the general rule that a purchaser for value takes free from equities of which he has no notice.50 Whether he is a purchaser for value if the mortgage was made to secure a preexisting debt, is a question as to which the authorities are not in accord.51