Holden v. Brimage

• Court: Mississippi Supreme Court
• Writing for the Court: COOPER, C. J.
• Citation: Holden v. Brimage, 72 Miss. 228, 18 So. 383 (Miss. 1894)
• Decision Date: 15 October 1894
• Parties: J. P. HOLDEN v. J. P. BRIMAGE ET AL

18 So. 383

72 Miss. 228

J. P. HOLDEN v. J. P. BRIMAGE ET AL

Supreme Court of Mississippi

October 15, 1894

FROM the circuit court of Rankin county, HON. A. G. MAYERS, Judge.

The case is stated in the opinion.

Judgment affirmed.

Wm Buchanan, for appellant.

1. Notwithstanding the acknowledgment was not sufficient to entitle the trust-deed to be recorded, the deed is good between the parties and those claiming under them. 18 Fla 587; 56 Mo. 196; 58 Ib., 565; 82 Ib., 488; 1 Am. & Eng. Enc L., 146, note. It would be valid inter partes if not acknowledged at all. Code 1892, § 2457; 146 Pa. 451.

2. The power to appoint a new trustee was properly exercised by Lovelace & Berry. The power was personal, and could not be transferred. Clark v. Wilson, 53 Miss. 119; Hartley v. O'Brien, 70 Ib., 825; Perry on Trusts, § 294.

3. Actual execution of the trust-deed by Brimage was shown. If further proof of execution was necessary, the application for continuance to another day.should have been granted.

Williamson & Potter, on the same side.

H. S. Cole and P. Henry, for appellees.

The trust-deed was properly excluded, because it was acknowledged before the trustee. Wasson v. Conner, 54 Miss. 351; 1 Am. & Eng. Enc. L., 145. Besides, Lovelace & Berry having parted with their interest in the trust-deed, could not appoint the trustee.

2. The application for a continuance was properly overruled. There was no affidavit, and nothing showing due diligence. The testimony as to the admission by Brimage that he executed the trust-deed was not sufficient. There was no evidence as to the other grantors.

OPINION

COOPER, C. J.

The appellant, claiming to be substituted trustee under the provisions of a deed of trust, to secure the payment of a certain note, executed by the appellees on January 30, 1891, to W. E. Traylor, as trustee, instituted this action of replevin for the recovery of the personal property conveyed by said deed.

On the trial of the cause the plaintiff offered in evidence the deed, which was objected to on the ground that it had been acknowledged before the trustee, W. E. Traylor, which acknowledgment was, because of the incapacity of said trustee to take and certify the same, not competent evidence of its execution, and because no other evidence was offered to prove the execution thereof. This objection was sustained, and the deed excluded, and thereupon, as appears by the statement of the bill of exceptions, the cause was continued until the sixth day of the term. On that day the plaintiff applied for a continuance, because of the absence of the appellees and one P. B. Berry, for whom subpoenas had issued, and by whom the plaintiff expected to prove the execution of the deed. The continuance was refused, and thereupon, as the bill of exceptions states, "Win. Buchanan, attorney for the plaintiff, then testified on the part of the plaintiff, that he a few days ago exhibited the note and deed of trust afterwards offered in evidence herein, to J. P. Brimage, one of the defendants, and that said J. P. Brimage told witness that he signed said note and deed of trust in his own handwriting, and acknowledged the same before W. E. Traylor, justice of the peace, at the time they purport on their face to have been signed and acknowledged. This was all the evidence in the cause, and the court then gave judgment for the defendants."

The deed of trust was properly excluded when offered in evidence. The effect of an acknowledgment is to entitle the instrument to recordation, and also to dispense with other proof of its execution. In Wasson v. Connor, 54 Miss. 351, it was said by this court that "whatever may be said of the receiving for record and recording a deed, it is evident that the taking of an acknowledgment of a grantor is a quasi judicial act, and cannot be performed by the grantee in the deed. The officer who takes an acknowledgment acts in a judicial character in determining whether the person representing himself to be, or represented by someone else to be, the grantor named in the conveyance, actually is the grantor. He determines, further, whether the person thus adjudged to be the grantor does actually and truly acknowledge before him that he executed the instrument. By his certificate he makes an official record of his adjudication on these points which cannot be impeached by himself, and sometimes cannot be impeached by the grantor. Johnston v. Wallace, 53 Miss. 331. Inasmuch as no man can be a judge in his own case, it follows that the grantee in a deed can never act as an officer in taking an acknowledgment to the conveyance."

In Wasson v. Connor the acknowledgment was taken by the ...