Bank of Ukiah v. Petaluma Sav. Bank

Appeal from the judgment. A simple question of law is presented by this appeal. The learned judge of the trial court, in an opinion which respondent has printed in his brief, presents that question thus: “Will the lien of an unrecorded mortgage, given to secure a loan, take precedence over an attachment or judgment lien obtained after the execution of the mortgage ? There is no law in this state which requires conveyances to be recorded. Section 1217 of the Civil Code provides that ‘an unrecorded instrument is *591 valid as between the parties thereto and those who have notice thereof.’ This section implies that a mortgage, though unrecorded, is a lien upon the real estate mentioned therein, and our supreme court has said that the mortgage lien attaches when the instrument is executed though recorded afterwards. (Root v. Bryant, 57 Cal. 48 ; Walker v. Buffandeau, 63 Cal. 312 .)”

The mortgage covered property situate in Sonoma county and also property in Trinity county. It was recorded in Sonoma, but not in Trinity. Shortly after it was executed, appellant brought suit against the mortgagors and caused an attachment to be levied on the land in Trinity county.

Subsequently a…