Horbach v. Tyrrell

• Decision Date: 19 May 1896
• Docket Number: 6231
• Citation: 67 N.W. 485,48 Neb. 514
• Parties: JOHN A. HORBACH, APPELLEE, v. SARAH J. TYRRELL ET AL., APPELLEES, IMPLEADED WITH JULIA M. SCHENCK ET AL., APPELLANTS
• Court: Nebraska Supreme Court

67 N.W. 485

48 Neb. 514

JOHN A. HORBACH, APPELLEE, v. SARAH J. TYRRELL ET AL., APPELLEES, IMPLEADED WITH JULIA M. SCHENCK ET AL., APPELLANTS

No. 6231

Supreme Court of Nebraska

May 19, 1896

APPEAL from the district court of Douglas county. Heard below before IRVINE, J.

REVERSED AND REMANDED.

Kennedy & Learned and W. H. Crow, for appellants.

Howard B. Smith and Elmer E. Thomas, contra.

Blair & Goss, for plaintiff.

RAGAN C. IRVINE, C., took no part in the consideration of the case. RYAN, C., dissenting.

OPINION

See opinions for references to authorities.

RAGAN C. J.

John A Horbach brought this suit in equity in the district court of Douglas county to foreclose a real estate mortgage executed and delivered to him by Isaac Tyrrell and Sarah J., his wife. The mortgage conveyed the east fifty feet of the west four hundred feet of lot 2, in Bartlett's Addition to the city of Omaha, and lot 21, in block 23, Sheridan Place, city of Omaha. The mortgage bore date May 2, 1890, and was filed for record in the office of the register of deeds of Douglas county May 5, 1890. Prior to the bringing of this suit Isaac Tyrrell died intestate. His widow and heirs and George L. Wass, his administrator, were made defendants to this action. On the trial the court appointed Elmer C. Thomas, an attorney of the court, guardian ad litem for the minor children. Julia M. Schenck and the O. F. Davis Company, a corporation, were also made parties to the action and filed cross-petitions. Julia M. Schenck sought to foreclose a mortgage bearing date May 16, 1887, executed by Tyrrell and wife to the O. F. Davis Company on the said east fifty feet of the west four hundred feet of lot 2, in Bartlett's Addition, she being the assignee of the O. F. Davis Company. This mortgage was recorded in the office of the register of deeds of Douglas county on the 18th of May, 1887. The O. F. Davis Company sought to foreclose a mortgage dated May 16, 1887, and recorded May 23, 1887, executed by Tyrrell and wife to it on the same premises described in the mortgage assigned by the O. F. Davis Company to Schenck. If all these mortgages are valid, the mortgage of Julia M. Schenck is a first and the mortgage of the O. F. Davis Company a second lien upon all the real estate described therein, and the mortgage of Horbach a third lien upon the property described in the Schenck and O. F. Davis Company mortgages, and a first lien on lot 21, block 23, Sheridan Place. By the decree of the district court the mortgage of Horbach was held to be valid, and the mortgages sought to be foreclosed by Schenck and the O. F. Davis Company were adjudged void. From this decree the O. F. Davis Company and Julia M. Schenck have appealed.

1. The O. F. Davis Company, to whom the mortgages adjudged void were made and delivered, was at the time a domestic corporation. The real estate conveyed by the mortgages was the homestead of Tyrrell and wife, and the notary public who took the acknowledgment of Mr. and Mrs. Tyrrell to the mortgages was, at the time, the secretary and treasurer of the O. F. Davis Company, mortgagee. The learned district court was of opinion that the notary public, by reason of his relation to the mortgagee, was disqualified from taking the acknowledgment of Mr. and Mrs. Tyrrell, and that therefore the mortgages were absolutely void. Conveyances of real estate in this state, except leases for one year or for a less time, if executed in this state, are required by the statute to be signed by the grantor, being of lawful age, in the presence of at least one competent witness and to be acknowledged or proved. (See sec. 1, ch. 73, Compiled Statutes, 1895.) By section 2 of said chapter it is provided that the grantor must acknowledge the instrument to be his voluntary act and deed. In Burbank v. Ellis, 7 Neb. 156, Harrison v. McWhirter, 12 Neb. 152, 10 N.W. 545, Buck v. Gage, 27 Neb. 306, 43 N.W. 110, and Connell v. Galligher, 36 Neb. 749, 55 N.W. 229, it was held: The functions of an acknowledgment to a deed are twofold,--(1) to authorize the deed to be given in evidence without further proof of its execution, and (2) to entitle it to be recorded. It was further held that the acknowledgment of a deed to real estate was no part of the deed itself. We must not be understood as questioning in the slightest degree the correctness of these decisions. But the real estate described in the conveyances considered in those cases was not the homestead of the parties making the conveyances, and the decisions had no reference to the acknowledgment of conveyances affecting the homestead of the grantors. In 1879 the legislature passed an act entitled "Homesteads." This is now chapter 36, Compiled Statutes of 1895. Section 4 of this chapter is as follows: "The homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife." The obvious purpose of this statute is to render all conveyances or incumbrances made of a homestead absolutely void unless such conveyances are not only signed and witnessed but acknowledged by both the husband and the wife. It therefore follows that the mortgages of the appellants Schenck and the O. F. Davis Company are void, even as between the parties thereto, if those mortgages were not duly acknowledged; that is, if the officer who took the acknowledgment of the grantors therein was disqualified from taking such acknowledgment.

2. In what character or capacity does an officer act in taking the acknowledgment of a grantor to a conveyance of real estate? Is the act judicial or ministerial? Section 2, chapter 73, supra, only requires the grantor to acknowledge the instrument to be his voluntary act and deed; and the requirement of section 3 of said chapter is that he may make such an acknowledgment before a judge or clerk of any court or some justice of the peace or notary public. No statute of which we are aware declares that the act of taking an acknowledgment is or shall be held to be a judicial one, and section 1, article 6, of the constitution of the state declares: "The judicial power of this state shall be vested in a supreme court, district courts, county courts, justices of the peace, police magistrates, and in such other courts inferior to the district courts as may be created by law for cities and incorporated towns." Judicial power, it would seem, is the authority of some person or tribunal to hear and determine a controversy and to reduce such determination to a judgment or decree binding the parties thereto; but the acknowledgment by a grantor that he executed a conveyance is merely his voluntary admission that he has done so. The officer taking the acknowledgment has no power to compel a grantor to attend before him and no power to coerce an answer as to whether he did execute a conveyance; and upon the theory that the act of an officer in taking an acknowledgment is a ministerial one the supreme court of Massachusetts held in Learned v. Riley, 96 Mass. 109, 14 Allen 109, that the acknowledgment of a deed might be taken by a justice of the peace out of the county in which he resides. The cases in which the question has been considered are, however, by no means harmonious. They are collated in 1 American & English Encyclopedia of Law, second edition, at pages 487, 488, and it is there said that the weight of authority is that the act of an officer in taking an acknowledgment of a real estate conveyance is a ministerial one. Following are some of the authorities there collated which hold such act to be judicial: Griffith v. Ventress, 91 Ala. 366, 8 So. 312; Wedel v. Herman, 59 Cal. 507; Stevens v. Hampton, 46 Mo. 404; Long v. Crews, 113 N.C. 256, 18 S.E. 499; Cover v. Manaway, 115 Pa. 338, 8 A. 393; Bowden v. Parrish, 86 Va. 67, 9 S.E. 616; Pickens v. Knisely, 29 W.Va. 1, 11 S.E. 932; Johnston v. Wallace, 53 Miss. 331.

In Wasson v. Connor, 54 Miss. 351, the court said: "It is evident that the taking of an acknowledgment of a grantor is a quasi-judicial act. * * * The officer who takes an acknowledgment acts in a judicial character in determining whether the person representing himself 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."

In White v. Connelly, 105 N.C. 65, 11 S.E. 177, it was held that the clerk of a superior court, in adjudicating a certificate of acknowledgment and admitting the instrument to probate and ordering registration, acts judicially.

The following are some of the authorities which hold that such an act is a ministerial one: Elliott v. Peirsol, 26 U.S. 328, 1 Peters 328; Hill v. Bacon, 43 Ill. 477; Beuley v. Curtis, 92 Ky. 505, 18 S.W. 357; Gibson v. Norway Savings Bank, 69 Me. 579; Scanlan v. Wright, 30 Mass. 523, 13 Pick. 523; Bank of Benson v. Hove, 45 Minn. 40, 47 N.W. 449; Truman v. Lore, 14 Ohio St. 144; Williamson v. Carskadden, 36 Ohio St. 664; Lewis v. Waters, 3 H. & McH. 430.

The conflict in the authorities is probably due to the peculiar statutes of the various states on the subject of acknowledgments. In Calumet & Chicago Canal & Dock Co. v Russell, 68 Ill. 426, and Kerr v. Russell, 69 Ill. 666, the supreme court held that an officer in taking the acknowledgment of a married woman acted judicially; but when the acknowledgments considered in those cases were taken the statute of Illinois required of an officer taking the acknowledgment of a married woman to make her acquainted with and explain to her the contents of the conveyance; to examine her separate and apart from her husband as to whether she executed the conveyance...