Page:North Dakota Reports (vol. 1).pdf/390

 actual or constructive, of such rights. The recording of the junior mortgage is not constructive notice to the prior mortgagee of the existence of such mortgage, or of the mortgagee’s equitable right thereunder, to insist that the prior mortagee shall not release from the lien of his mortgage any property upon which the subordinate incumbrancer has no lien, to his prejudice.

PPEAL from district court, Stutsman county; Hon., Judge.

In April, 1883, defendent McGee, owner of part of section 4-149-67, mortgaged said land to appellant to secure payment of his note to her in sum of $1,900. At the same time he hada building on said premises insured against fire for $2,500, with loss payable to appellant. In June, 1883, McGee mortgaged the same and other premises to plaintiffs to secure payment of $2,600. Both mortgages were recorded as soon as made.

In October, 1883, the insured building was destroyed by fire. Neither plaintiffs’ nor appellant’s debt was then due. Later, and before either debt was due, the insurer made its drafts for sum of $2,466.67, payable to McGee and appallant. By agreement between McGee and appellent the latter applied $700 of the insurance moneys on her debt and the balance was disposed of by McGee.

Afterwards appellant foreclosed her mortgage, bid in the property and a sheriff's deed was made to her.

Then plaintiffs brought this suit to foreclose their mortgage and prayed for a decree adjudging the appellant’s mortgage discharged and that her foreclosure proceedings and sheriff's deed be adjudged null and void.

The judgment of the district court was in accordance with the prayer of the complaint.

Edgar W. Camp, for appellant; John S. Watson, for respondent.

, C. J. Viewed in the light of the record, the plaintiffs sought and obtained against the defendant unwarranted re-