Dorsey v. Conrad

• Decision Date: 21 October 1896
• Citation: 49 Neb. 443,68 N.W. 645
• Parties: DORSEY v. CONRAD ET AL.
• Court: Nebraska Supreme Court

49 Neb. 443

68 N.W. 645

DORSEY

v.CONRAD ET AL.

Supreme Court of Nebraska.

Oct. 21, 1896.

Syllabus by the Court.

1. A deed for lands situate in this state, executed in the state of Iowa, and there acknowledged before a notary public, who attached his official seal to the certificate of acknowledgment, is presumed to have been acknowledged in conformity with the laws of that state; and such deed is entitled to record, and to be read in evidence, without other proof of its execution.

2. Conveyances of real estate, executed within this state, conveying real estate situate within this state, are required to be witnessed. Comp. St. c. 73, § 1.

3. A deed of land situate in this state, executed in the state of Iowa, and acknowledged there before a notary public, who attached his official seal to the certificate of acknowledgment, is presumed to have been executed in accordance with the laws of the state of Iowa, and, though not witnessed, is entitled to be recorded and read in evidence in this state without further proof that the grantors therein actually executed and delivered the deed.

4. Where a written instrument shows upon its face a material and obvious alteration, the presumption of law is that such alteration was made before the instrument was finally executed and delivered.

5. Such an instrument may go in evidence in the first instance, leaving the parties to such explanation of the alteration as they may choose to offer.

6. Whether an alteration or erasure appearing in a written instrument is a material one is a question of law, for the court; but when, by whom, and with what motive, such alteration was made, is a question of fact, for the jury or trial court, to be determined like any other question of fact.

7. An action by an owner of the fee to redeem his land from a mortgage thereof which has been foreclosed, and to which foreclosure proceedings he was not a party, or, if a party, not served with process, may be brought at any time within 10 years after his cause of action accrued.

8. Such an action to redeem is barred in the same time in which the statute would bar the right to foreclose the mortgage.

9. Johnson v. Bank, 45 N. W. 161, 28 Neb. 792, and Courcamp v. Weber, 58 N. W. 187, 39 Neb. 533, overruled.

10. Bank v. Morrison, 22 N. W. 782, 17 Neb. 341, and Goodin v. Plugge, 66 N. W. 407, 47 Neb. 284, reaffirmed.

Appeal from district court, Dixon county; Norris, Judge.

Action by Frank Dorsey against Martha Conrad and others. Decree for plaintiff, and defendants appeal. Affirmed.W. E. Gantt, for appellants.

Wigton & Whitham and B. W. Wood, for appellee.

RAGAN, C.

On the 14th of February, 1877, James Chamberlain owned a quarter section of land in Dixon county, and on said date mortgaged it to the New England Mortgage-Security Company to secure a note due on the 14th of February, 1882, with interest thereon payable annually. The note and mortgage provided that, if Chamberlain made default for a certain number of days in the payment of any installment of annual interest when due, the holder of the mortgage debt might declare the entire mortgage debt due, and upon such default, and the exercise of such election, said mortgage debt should then become due. Chamberlain and wife in November, 1878, executed and delivered to one Parke a power of attorney, and authorized him to sell and convey the real estate which had been mortgaged to the New England Mortgage-Security Company; and on the 22d of November, 1878, Parke, the attorney in fact, executed and delivered a deed of the premises mortgaged by Chamberlain to Viola Wigton. Default having been made in the payment of the interest which matured on the mortgage in October, 1878, the mortgage company on December 9, 1878, brought suit to foreclose the mortgage, and, according to the provisions thereof, declared the entire mortgage debt due. Chamberlain and wife were made defendants to this action, but Viola Wigton, the owner in fee of the equity of redemption, was not made a party to the suit. At the time the mortgage company filed its petition to foreclose its mortgage, the deed of Viola Wigton had not been filed for record, but was so filed on the 4th of March, 1879. The foreclosure proceeding was prosecuted to decree, and the lands appraised, advertised, and sold, and purchased by the mortgage company. The appellant Martha Conrad claims title to the land through a chain of conveyances from the mortgage company, the purchaser at the foreclosure sale. The appellee, Dorsey, claims title to the land through a chain of conveyances from Viola Wigton. Dorsey brought this action to redeem the real estate from the mortgage made by Chamberlain to the New England Mortgage-Security Company. He had a decree as prayed in his petition, and Martha Conrad and others have appealed.

1. One link in Dorsey's chain of title is the deed to Viola Wigton from the mortgagors, Chamberlain and wife, made by Charles L. Parke, their said attorney in fact. This deed was executed by the attorney in fact in the state of Iowa, and there acknowledged before a notary public, who attached his official seal of office to his certificate of acknowledgment. The deed recited: “Know all men, by these presents, that James Chamberlain and Julia Chamberlain, husband and wife, by Charles L. Parke, their attorney in fact, all of Dixon county and state of Nebraska, in consideration,” etc., “do hereby sell and convey unto Viola Wigton, and to her heirs and assigns, the following described real estate, situate in the county of Dixon and state of Nebraska, to wit,” etc. The deed was signed: “James Chamberlain. Julia Chamberlain. By Charles L. Parke, Attorney in Fact.” The acknowledgment was in words and figures as follows: “State of Iowa, Iowa County--ss.: On this 22d day of November, 1878, before me, Ira S. Richards, a notary public in and for said county, personally came Charles L. Parke, attorney in fact for James Chamberlain and Julia H., his wife, to me personally known to be the identical person who signed the above deed as grantor, and acknowledged the same to be his voluntary act and deed. Witness my hand and seal notarial the date last above written. Ira S. Richards, Notary Public Ia. Co., Ia.” The original power of attorney from Chamberlain and wife to Parke was read in evidence, but there was no testimony--other than that afforded by the deed and its acknowledgment--offered on the trial that Parke, the attorney in fact, executed the deed. It is now insisted that the acknowledgment to the deed is so defective as not to entitle the deed to be recorded,--not to entitle it to be read in evidence,--without parol proof that Chamberlain and wife, through their attorney in fact, Parke, actually executed the deed, and that, as there is no such testimony in the record, the decree cannot stand. It is argued that the acknowledgment is simply the personal acknowledgment of Charles L. Parke; that it should have read, “Personally appeared James Chamberlain and Julia Chamberlain, his wife, by their attorney in fact, Charles L. Parke”; that he should have acknowledged that he executed the same as the act and deed of James Chamberlain and wife, therein described. This acknowledgment was taken on the 22d day of November, 1878, as already stated, by the notary public, in the state of Iowa, and he attached his official seal to his certificate to the deed. At that time the statutes of this state on the subject of conveyances of real estate provided that, if acknowledged or proved in any other state or territory or district of the United States, it must be done according to the laws of such state, territory, or district, and must be acknowledged or proved before an officer authorized to do so by the laws of such state, territory, or district, or before a commissioner appointed by the governor of this state for that purpose. In all cases provided for in section 4 of this chapter, if such acknowledgment or proof is taken before a commissioner appointed by the governor of this state for that purpose, a notary public, or other officer using an official seal, the instrument thus acknowledged or proved shall be entitled to be recorded, without further authentication. Gen. St. 1873, c. 61, §§ 4, 5. These provisions of the statute were construed by this court in Hoadley v. Stephens, 4 Neb. 431, and it was there held that “where a deed is executed and acknowledged in another state, before a commissioner of deeds of this state, a notary public, or other officer using an official seal, the law presumes a compliance with the law of the place of execution, and no further authentication is necessary.” And in Green v. Gross, 12 Neb. 117, 10 N. W. 459, the statute quoted above was again construed, and the court held that “when a deed is made in another state the certificate of acknowledgment of a notary public thereto, duly attested by his official seal, entitled such deed to be recorded, without further authentication.” To the same effect, see Galley v. Galley, 14 Neb. 174, 15 N. W. 318. The deed in question being for lands situate within this state, and having been executed in the state of Iowa, was, by the statute quoted above, required to be executed in conformity to the laws of the state of Iowa; and since it was acknowledged by an officer using an official seal, and attested by his seal, the presumption is that the acknowledgment is in conformity to the law of the state of Iowa, and there is no proof in the record to the contrary. The deed was therefore entitled to be recorded, and was competent evidence, and the court did not err in so considering it.

2. The deed of the attorney in fact to Viola Wigton, as first drawn, described the land as being in “section twenty-one (21) township thirty-one (31) and range three (3).” A pen was subsequently drawn through the word “three,” and the word “four” substituted therefor. The evidence does not show when, or by whom, this erasure or alteration was made; and a second...