Citizens' Bank of Parker v. Shaw

• Decision Date: 31 December 1900
• Citation: 84 N.W. 779,14 S.D. 197
• Parties: CITIZENS' BANK OF PARKER v. SHAW et al.
• Court: South Dakota Supreme Court

84 N.W. 779

14 S.D. 197

CITIZENS' BANK OF PARKER v. SHAW et al.

Supreme Court of South Dakota

December 31, 1900

Appeal from circuit court, Turner county; E. G. Smith, Judge.

Action by the Citizens' Bank of Parker against Frank W. Shaw and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

W. E Gantt and W. A. Houts, for appellant. Keith & Warren, for respondents.

CORSON J.

This is an action by the plaintiff to foreclose a mortgage of which it claims to be the owner, executed by Frank Shaw and wife to one Dewey Shaw in October, 1891, to secure the sum of $800. Findings and judgment for the defendants, and the plaintiff appeals.

The respondents Groenevilde and Wumkes claim to be the owners of the property mortgaged, having purchased the same from Frank Shaw and wife in December, 1892, in good faith, for a valuable consideration, and without notice of plaintiff's claim to the premises. The defendants Frank W. Shaw, Mary J Shaw, and Dewey Shaw, having no actual interest in the property in controversy in this action, will be disregarded as respondents, and we shall treat the purchasers of the property, Groenevilde and Wumkes, as the real respondents for the purposes of this decision. It is disclosed by the record in this case that there was no written assignment of the mortgage in this case from Dewey Shaw and wife to the plaintiff, and that, prior to the purchase of the property by the respondents, the mortgage was paid by the original mortgagors, and satisfied by the mortgagees, and the satisfaction recorded in the office of the register of deeds of Turner county, in which county the property was situated. This satisfaction of the mortgage bears date November 11 1892, but appears to have been acknowledged on the 10th day of November, 1892. It further appears that about the time the respondents purchased the property the legal title to the same stood in the name of L. E. Lord, an officer of the First National Bank of Parker, as security for a debt owing by Frank Shaw to said bank, and that said Lord reconveyed the legal title to Frank Shaw by a special deed of warranty, and that thereafter Frank Shaw and wife conveyed the property to the respondents by a deed with full covenants of warranty. It further appears, upon the case being reopened for the admission of evidence before findings of fact were made and judgment entered, that the respondents paid to Frank Shaw at the time of the purchase of the property $500 in cash, executed two notes of $500 each to the First National Bank to pay the indebtedness of said Frank Shaw to said bank, and assumed a prior mortgage upon the property of $1,000, which they stipulated in the deed to pay. In recording the satisfaction of the mortgage executed by Dewey Shaw and wife a mistake was made by the register of deeds in the venue of the certificate of acknowledgment of the same, in that it appears to have been executed and acknowledged in Taney county, "state of Wisconsin," whereas it was in fact executed and acknowledged in Taney county, "state of Missouri." The appellant contends: First. That in the acknowledgment of the satisfaction of the mortgage it appears to have been taken on the 10th day of November, and the satisfaction is dated the 11th day of November, from which appellant claims that it should be inferred that it was acknowledged before it was executed; and that in the record of the satisfaction, through mistake of the register of deeds, the venue of the acknowledgment was recorded "State of Wisconsin" instead of "State of Missouri"; and that these defects in the record of the satisfaction of the mortgage were sufficient to put the purchasers upon inquiry, and were notice that there was an outstanding equity.

Second. That the special warranty deed from Lord to Frank Shaw was, in effect, a quitclaim, and of itself was sufficient to put the purchasers upon inquiry. Third. That at the time the trial was concluded and the case taken under advisement by the court there was no evidence on the part of the respondents that they were purchasers for value, in good faith, and without notice. Fourth. Assuming that the court was authorized to open the case, and admit further evidence, after the case was submitted to it, it does not appear from the evidence when the respondents paid their notes given as a part of the purchase price, and hence that it must be inferred that they were not paid until after the respondents had actual notice of appellant's claim, and, therefore, to the extent of the consideration paid after the notice, they were not bona fide purchasers, and that the appellant was entitled to a foreclosure pro tanto.

It would seem from the evidence of the respondents that, while they both saw the satisfaction of the Dewey Shaw mortgage on the records of Turner county, neither of them noticed that the instrument bore date a day subsequent to the acknowledgment; but, had they done so, we are of the opinion that that fact would not have been sufficient to put them upon inquiry. It was not such an irregularity as would have excited the suspicion of an ordinarily prudent man, and would very naturally have been taken as a mere clerical error in the dating of the instrument. In Fisher v. Butcher, 19 Ohio, 406, 53 Am. Dec. 436, a deed was offered in evidence dated January 6, 1842, and the certificate of acknowledgment bore date of January 6, 1840, two years before the date of the instrument. The court said: "It is only necessary that the acknowledgment should be taken after the deed is executed. It is not important that it should be taken at any specified time. It appears from the certificate that the deed was made at the time. It refers to it as the 'above conveyance,' and certifies to an acknowledgment of the signing and sealing thereof. The paper itself sufficiently shows an acknowledgment of the deed after its execution, and that the contradiction of dates arises from a clerical mistake." So we may say of the instrument in the case at bar, it sufficiently appears that it was executed before the acknowledgment was taken. The notary certifies that Dewey Shaw and Millie Shaw, his wife, to him personally known to be the same persons described in and who executed the above instrument, acknowledged to him that they executed the same voluntarily. This could not have been true unless the deed had then been executed. It therefore appears from the certificate that the persons named were personally known to the officer to be the persons described in and who executed the instrument. The satisfaction was sufficiently proved by the certificate of the notary to entitle it to be recorded, and, being recorded, it was competent and sufficient constructive notice, as well as actual notice, to the purchasers, of the satisfaction of the mortgage debt. See, also, Yorty v. Paine, 62 Wis. 154, 22 N.W. 137.

The mistake of the register of deeds in inserting "State of Wisconsin" instead of "State of Missouri" was a mistake of a public officer, which cannot be...