Belknap v. Shock
| Decision Date | 23 February 1943 |
| Docket Number | 9418. |
| Citation | 24 S.E.2d 457,125 W.Va. 385 |
| Parties | BELKNAP et al. v. SHOCK et al. |
| Court | West Virginia Supreme Court |
Herbert M. Blair, of Weston, for plaintiff in error.
No appearance for defendants in error.
To a decree of the Circuit Court of Braxton County (a special judge sitting), by which the lien of a deed of trust securing a debt held by Roy Brown was subordinated to certain subsequent judgments, we granted the trust creditor this appeal.
The appellant was the holder of certain notes dated December 16 1939, and payable to himself at the Weston National Bank Weston, West Virginia, and secured by two deeds of trust of the same date, one, covering two parcels of land in Braxton County, executed by Newlon F. Shock and wife, and the other covering four parcels in that county, by Charles N. Shock and wife. Each of these trust deeds was acknowledged by the grantors before a notary public and was presented for admission to record in the office of the clerk of Braxton County December 23, 1939, and was spread on record as of that date. In this cause (a judgment lienor's suit), the commissioner to whom the cause was referred, reported the claim of the appellant as a lien on the land of the two Shocks superior in priority to certain subsequent judgments. Exceptions to this priority of plaintiff's claim were taken by a subsequent judgment lienor on the ground that the deeds of trust by which appellant's notes were purported to be secured did not set forth the beneficial owner of the debt secured thereby, nor where he resided, as specifically provided in Chapter 88 of the Acts of the Legislature, Second Extraordinary Session, 1933 (Michie's 1937 Code, 39-1-2, serial number 3948). The appellant denies that the lien of his deeds of trust is affected by this statute.
Prior to the enactment of said Chapter 88, the sections of the statute important to be noted were as follows:
"Instruments Recordable.--The clerk of the county court of any county in which any deed, contract, power of attorney, or other writing is to be, or may be, recorded, shall admit the same to record in his office, as to any person whose name is signed thereto when it shall have been acknowledged by him, or proved by two witnesses as to him, before such clerk of the county court." Code 1931, 39-1-2.
"Who May Take Acknowledgment.-- Upon the request of any person interested therein, such clerk of the county court shall also admit any such writing to record, as to any person whose name is signed thereto, upon a certificate of his acknowledgment before the president of a county court, a justice of the peace, notary public, ***." Code 1931, 39-1-3.
Chapter 88 of the Acts of the Legislature of 1933, Second Extraordinary Session, enacted:
The title of this act reads as follows: "An Act to amend and reenact section two, article one, chapter thirty-nine of the code of West Virginia, one thousand nine hundred thirty-one, specifying what instruments are recordable."
It will thus be seen that by its title, its enacting clause and its content this act was directed solely to section two, article one, chapter thirty-nine of the Code as it theretofore stood. That section, despite the "catchwords" prefixed thereto, merely commanded a county clerk to admit to record in his office certain named writings, when acknowledged or proven before him. It is common knowledge that extremely few recordable instruments are actually so acknowledged or proven. Authentication of instruments for record is almost universally done under the following section, Code, 39-1-3, which provides that such clerk shall also admit the same writings to record in his office when acknowledgment thereof is certified by anyone of a score of other public officials. The deeds of trust of the appellant were each acknowledged before a notary public, not before the clerk of the county court, and, therefore, are controlled by section 3. We, therefore, must determine whether this section is affected by the amending and repealing provisions of Chapter 88, aforesaid. That amendment, so far as internal evidence discloses, by every test that occurs to us, plainly, indubitably and repeatedly applies, and was intended to apply, to section 2 only. In its direct and express language it refers to and affects only such instruments as are acknowledged or proved before the clerk, and not to those otherwise authenticated for recordation. If the duty of a clerk to admit to record an instrument acknowledged under section 3 is modified by this amendment, this result must arise, not directly, but by implication, or as a necessary incident to the thing expressly done by the act.
Repeal or amendment by implication is not favored by law. Sale v. Board of Education, 119 W.Va. 193, 192 S.E. 173; Vinson v. Wayne County Court, 94 W.Va. 591, 119 S.E. 808; Beck v. Cox, 77 W.Va. 442, 87 S.E. 492; Kimball v. Loughney, 70 W.Va. 765, 74 S.E. 953; Clemans v. Board of Education, 68 W.Va. 298, 69 S.E. 808; State v. Enoch, 26 W.Va. 253; Forqueran v. Donnally, 7 W.Va. 114. Of course, a legislative act generally modifies, amends or repeals some former law, else it would have no purpose and no effect. But, unless so expressly stipulated in the amending or repealing act, the new statute will not be treated as affecting former statutes, except for unavoidable necessity. Where the statute to be amended or repealed is directly and specifically pointed out in the new enactment, no wider scope will be implied, if any other reasonable conclusion can be maintained. Matheny v. White, 88 W.Va. 270, 106 S.E. 651; First Nat. Bank v. De Berriz, 87 W.Va. 477, 105 S.E. 900; Ex parte Watson, 82 W.Va. 201, 95 S.E. 648; Kelley & Moyers v. Bowman, 68 W.Va. 49, 69 S.E. 456.
Scrutiny of the act reveals that, by the ordinary devices commonly used in legislative enactments, this Chapter 88 was directed and limited expressly to section 2 only. The title so says the enacting clause so says; by the very language of the body of the act this limitation or restriction unequivocally appears. The amendment is, in fact, nothing but an exception engrafted upon the preceding paragraph. The clerk, under the amendment, is required to admit to record in his office all of the enumerated writings, which have been acknowledged or proved before him, except such as do not set forth the names and...
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