¶1(-dissenting.) This action was -commenced on the'25th day of March, 1914, to determine adverse title and equitable interests 'in and to the southeast quarter of section 6, township 114, range 52, in Hamlin- -county; the plaintiff claiming to be the owner thereof under and by virtue of a mortgage foreclosure sale. The defendant Gorman, interposed a counterclaim claiming to ibe entitled to said land as owner thereof by virtue of attachment levy and judgment and redemption thereunder from the mortgage sale under which plaintiff -claims. Plaintiff by reply and as. a defense to this counterclaim alleged matter tending to show that defendant Gorman is estopped and legally precluded from claiming any interest in said lama under -his attachment levy and judgment. Defendant Gorman interposed a general demurrer to this portion of the reply on the ground that the same did not constitute a -defense to' said ■counterclaim. From, an order overruling s-uch demurrer, defendant Gorman appeals.
¶2The facts disclosed by said pleadings material to a disposition of the question 'here presented, and which, for convenience, we classify under three divisions, are substantial these: (1) On the 2d day of July, 19.09, one W. S. Madden, who was then'the fee-simple owner of said southeast quarter of section 6, as a mor-t-*324gagor, executed and delivered to’ one Gould a real estate mortgage upon said land to secure the payment of $3,000 and interest. Default having been made in the payment of said sums so secured by said mortgage the said mortgagee foreclosed the same, ¡by advertisement, arndi on the 1st day of February, 1913, at foreclosure sale the .said land was sold to one Skinner, and a certificate of sale issued to said purchaser. On March 27, 1913, Skinner assigned said certificate to plaintiff, which assignment of certificate was filed for record on January 21, 1914. That after the expiration of one year from, the date of said foreclosure sale the plaintiff demanded of the sheriff of said county a sheriff’s deed on such foreclosure, which was refused by said sheriff on ■the ground that on the 24th day of January, 1914, the defendant Gorman bad redeemed from, such foreclosure sale by the payment to said sheriff -all such sums as were required' by law to1 make such redemption. (2) On the 7th day of September, 1909, the said Madden, s.till being the 'fee-simple owner of said! land, entered into a contract with one Dentil, whereby Madden agreed to sell. and convey, and Denth agreed to .purchase, said land for the consideration of $8,320, the said Lenth agreeing to1 assume the payrr lit of the Gould mortgage, to pay $2,070 on delivery of the contract, and $3,250 on the 1st day of March, 19.10. On the 9th day of September, 1909, Madden executed' a warranty deed to said Lenth, as grantee, and delivered the same to. the Monona State bank of Monona, Iowa, as a depository appointed by said Lenth to> receive 'the same. Lenth .paid the said $2,070, and took possession of the land, 'but made default in the payment due March 1, 1910, 'anid thereafter in July, 1910, served notice of rescission of said contract. Also in July, 1910, Lenth, as -plaintiff, commenced an 'action against Madden, as defendant, to rescind and cancel said contract on the ground of alleged fraudulent representations. Madden answered in said action, denied the alleged fraudulent rep'resentations, interposed a counterclaim for specific performance of the contract, tendering to Lenth the deed theretofore delivered to the Monona State Bank, and demanded recovery from Lenth of the balance due on said contract as purchase money and that his lien for ¡such, purchase monej'- he foreclosed and said land sold to satisfy the same. Notice of the pendency of this action was filed : the time of the commencement thereof. Thereafter, *325in February, 1914, on the trial oí said action the court found, and' on March 5, 1914, •'adjudged that Lenth, as such, plaintiff, take nothing by his suit, and that Madden, as such defendant, have and recover from, Lenth the sum of $4,456.05 for the amount remaining unpaid on said purchase price; that said Lenth is the owner of said land and has been such owner since September 7, 1909, subject to the lien of said Gouldl mortgage, and also1 subject to the lien of Madden for the unpaid purchase money. (3) On January 25, 1912, the 'defendant in this case, Gorman, as plaintiff ini the case of Gorman v. Madden et al., another action which had been then pending for some years, attached and levied on the land in question as: the property of the defendant Madden in that action, and on the 7th day of November, 1912, judgment in favor of plaintiff in the said action of Gorman v. Madden et al. was docketed in Hamlin county against Madden. On the 24th day of January, 1914, Gorman,, as -the owner of said judgment against Madden, claiming the right as a judgment creditor of Madden with a lien on said land, sought to redeem from, the foreclosure sale made under the Gould mortgage.
¶3The ahatter contained in plaintiff’s reply to which the demurrer was1 interposed) alleged the facts in relation to, the contract of sale of said' land by Madden to, Lenth and .the suit of Lenth /. Madden and the judgment rendered therein. It is the contention of respondent that Gorman, neither under the attachment levy nor under the judgment, as plaintiff in the suit of Gorman v. Madden et al., obtained and acquired a lien upon or against the land in question, and by reason thereof had no legal right to malee redemption under the Gould) foreclosure; that notice of the pendency of the suit of Lenth, v. Madden having been filed and being of record- long’ prior to, such attachment levy and judgment in the Gorman v. Madden suit, and the judgment in 'the Lenth suit having adjudicated that Lenth became the owner of said real estate in September, 1909, and that Madden had no- interest in said land in 1912 that was subject to levy under attachment or subject to the lien of the judgment for plaintiff in the Gorman v. Madden -case, the defendant Gorman in this -case became concluded and bound by the judgment in the Lenth case. I am of the -opinion 'that the 'demurrer to plaintiff’s- reply was ¡properly overruled. It is a well-established' rule *326in this state that an unrecorded warranty deed will take precedence over a subsequent attachment or judgment lien upon the property conveyed -by such unrecorded deed; that such, attachment creditor is not considered as an innocent purchaser or incumbrancer under the recordation statutes, of this state. Such attachment and judgment lien could only attach and become operative on whatever title and interest the attachment or judgment lien debtor had, if any, in the land at the date of the-attachment levy and docketing of the judgment. Roblin v. Palmer 9 S. D. 36, 67 N. W. 949; Bateman v. Backus, 4 Dak. 433, 34 N. W. 66, 68; Kohn v. Lapham, 13 S. D. 78, 82 N. W. 408;. Murphy v. Plankinton Bank, 13 S. D. 501, 83 N. W. 575; Haynie v. Bennett, 22 S. D. 65, 115 N. W. 515; Bliss v. Tidrick, 25 S. D. 533, 127 N. W. 852, 32 L. R. A. (N. S.) 854, Ann. Cas.. 1912C, 671. The -effect of the- judgment -in the Dentil case was. that Madden had- 1 interest or title in the land at the time of the-attachment levy and docketing- of the judgment in the Gorman v. Madden suit. The only interest Madden had in- the land, in question -in 1912 was his chose- in action, namely, his debt against. Denth for the balance of the purchase money' and a right to- a purchase money lien on the land. This! -chose in action was not levied upon under the Gorman attachment, and the Gorman judgment -against Madden did not become a lien u-pon this chose-in action in Madden’s favor growing out of the Denth contract.
¶4The crucial question in this case is whether Madden had parted with- -bis title before the 25th day of January, 1912, at the time the Gorman attachment was levied on the land. It seems, to me that the -majority .opinion wholly loses sight of the-fundamental foundation principle that is involved in the .performance of such transactions and1 contracts relating to the sale-of property. It will be observed! that the contract 'between Denth and Madden was not a unilateral option -contract containing-specific precedent conditions, and time being of the essence thereof, and! where title -could not pass, until the performance of such precedent conditions, but it was a plain unconditional sale-for so- much money agreed to be paid in a certain maimer on a. certain date. Much that was -said in State v. Weide, 29 S. D. 109, 135 N. W. 696, directly applies to this case as- to the effect of such contracts. The kind of contract here involved is considered’’ *327in-1 Warvelle on Vendors, § 174, and 6 Bom. Eq. Jr. p. 1273. The fundamental principle to which I refer is that “equity regards that as done which ought to have been done.” All throughout the general law of sales of both real and personal property, where the question of acceptance and delivery is ‘involved, where a purchaser-has agreed to accept a thing, and the seller performs on his part, and places the buyer in a position where he ought, under his contract, to accept and receive delivery, but wrongfully does not, equity says that such buyer will be regarded as having accepted as of the time when he should, have done so. It is quite evident that the learned trial court applied this principle of equity law in -the Tenth v. Madden case. Facts were alleged in the pleadings of that case fully warranting the judgment rendered. Gorman had notice of the pendency of that action and of all 'the issuable facts appearing in such pleadings, and all of which occurred long prior to January 25, 1912. Madden had, long prior to January, 1912, placed Lemth in a position where - he ought to have accepted the 'delivery of the deed; the said deed being then in the possession of a depositary and agent selected by Lenth. Madden had performed and done all within his power, all that was required, of him under the contract, and all that remained under ithe contract was; for Tenth to pay' the balance of the purchase money. Madden had executed a deed and placed it where Tenth should have accepted it. Under these circumstances, equity says Tenth will be regarded as having accepted delivery of the deed when 'he ought to- have done so. That placed the title fully and completely in Tenth as of the date when Tenth should have accepted. From' thence afterwards Tenth was indebted to Madden for the .purchase price remaining unpaid with a purchase money Hen on the land of Tenth. From thence thereafter Madden had no title. At that instant Madden, having fully performed on his part, was entitled to full and complete specific performance from Tenth. Madden by the full ami complete performance of the contract of sale on hisi part, and by the tendor of his deed which, ought to have been accepted by Tenth, fully invested Tenth with title. If Madden had no title in 1912, there was nothing for the attachment levy on the land to take effect upon. The matter of passing title under the contract of sale was a matter purely and solely between Tenth and Madden, in which *328Gorman was not concerned or bad no interest. If title passed between the said parties to the sale contract in 1910, Gorman became bound thereby. The trial court by its decree did no.t create any new situation of affairs, but only declared the effect of what had taken place in 1910, prior to the beginning of that action. The judgment ¡in Lentil v. Madden was based upon the legal and equitable status of the contract and transaction at the commencement of that action. If decreed what had taken place some two years prior to the attachment, and of which Gorman had notice. The pleadings' in that case tol-d him what the facts were; he was presumed to know the result applicable to such facts.
¶5Again, Madden could not foreclose a purchase-money lien against his own land, and against land in which he himself held title, but it was because title was in Lentil that the court could decree a foreclosure of the purchase-money lien. This, also, appeared from the pleadings in the Lenth case. Gorman should have levied upon the chose in action belonging- to Madden, instead of making a levy on the land itself.
¶6The judgment appealed from should be affirmed.