Blackman v. Henderson

• Decision Date: 15 October 1901
• Parties: BLACKMAN v. HENDERSON ET AL.
• Court: Iowa Supreme Court

116 Iowa 578

87 N.W. 655

BLACKMAN

v.HENDERSON ET AL.

Supreme Court of Iowa.

Oct. 15, 1901.

Appeal from district court, Kossuth county; F. H. Helsell, Judge.

Action to foreclose a mortgage upon real estate. Judgment for the defendants. The plaintiff appeals.Soper, Allen & Alexander, for appellant.

Clarke & Cohenour, for appellees

SHERWIN, J.

The plaintiff brings the action to foreclose a mortgage which purports to have been made by James Henderson and Lucy Henderson, his wife, on the 26th day of June, 1889. The following facts are established by the record: At the time of the transaction hereinafter noticed the plaintiff was a resident of Chicago, Ill., and one C. L. Lund was a resident of Algona, Iowa. Before the execution of the mortgage, Lund went to the plaintiff, in Chicago, and negotiated a loan of $1,500 on the land covered by the mortgage. At this time the record title of the land stood in Lund. The plaintiff made the loan, and received the bond of $1,500 therefor, signed “James Henderson,” and a mortgage securing the same, signed “James Henderson” and “Lucy Henderson.” On the 25th of June, Lund and his wife executed a deed of the land to James Henderson, which was recorded July 26, 1889. On the 15th day of July, 1889, a deed of the same land was made by James Henderson to C. L. Lund, and this was recorded on the 30th day of December, 1889. Lund afterwards conveyed the land to the defendants' grantor. We are clearly of the opinion that James Henderson is a fictitious person; that Lund never conveyed the land to any such person; that no such person ever executed the plaintiff's bond and mortgage, or reconveyed the land to Lund; and that Lund made the mortgage in question in the name of James Henderson. Such being our conclusion of fact, what legal effect follows therefrom? Clearly this: Lund held the title to the land when the mortgage purporting to have been executed by James and Lucy Henderson was made, and that it was in law his mortgage, and, as between him and the plaintiff, was a valid instrument, and created a valid lien upon the property which it covered. 1 Jones, Real Prop. § 218; 1 Devl. Deeds, § 188; Wilson v. White, 84 Cal. 239, 24 Pac. 114;David v. Insurance Co., 83 N. Y. 266, 38 Am. Rep. 418. See, also, Bank v. Fletcher, 44 Iowa, 252. The mortgage, however, purported to be acknowledged before C. L. Lund, who was, as we have said, the mortgagor therein. It is the general rule that neither a grantor nor a grantee in any kind of conveyance can take his own acknowledgment of it before himself so as to entitle it to be recorded. 1 Devl. Deeds, § 478. The courts of some of the states have held, however, that, unless the interest of the officer taking the acknowledgment appears upon the face of the instrument itself, it will be entitled to record, and will impart constructive notice thereof. But a different rule was adopted in this state in Wilson v. Traer, 20 Iowa, 233, which has been since followed in Bank v. Radtke, 87 Iowa, 363, 54 N. W. 435, and in Smith v. Clarke, 100 Iowa, 605, 69 N. W. 1011; these cases holding that the interest disqualifies, whether apparent or not. Following these cases, we must hold that the mortgage to the plaintiff, though valid as between him and Lund, was not entitled to record, and that the record thereof did not, therefore, convey constructive notice to the defendants' grantor of its existence.

But the appellant contends that the defect in the acknowledgment was cured by the act of March 24, 1892 (24th...