In re Atlantic Smokeless Coal Co.

• Decision Date: 15 February 1952
• Docket Number: No. 2820.,2820.
• Citation: 103 F. Supp. 348
• Court: U.S. District Court — Southern District of West Virginia
• Parties: In re ATLANTIC SMOKELESS COAL CO.

103 F. Supp. 348

In re ATLANTIC SMOKELESS COAL CO.

No. 2820.

United States District Court S. D. West Virginia, Charleston Division.

February 15, 1952.

C. A. Tutwiler, Welch, W.Va., for petitioner.

Kingdon & Kingdon, F. T. Kingdon, all of Mullens, W.Va., for respondent.

MOORE, Chief Judge.

On October 1, 1951, the Referee entered a final order fixing priorities of claims against the bankrupt, there being available for distribution the sum of $41,853.41.

Petitioner, Arlington Trust Company, claimed a lien by virtue of a deed of trust on a large amount of miscellaneous personal property and real estate. Such claimed lien, if allowed, would have priority, at least as to such of the property described therein as could be identified and which was located in McDowell County, West Virginia, over the claims of the United States of America for various taxes, the State of West Virginia for various taxes, Okey Bishop, an attachment creditor of bankrupt, and C. L. Lambert, an employee of the bankrupt. If it is found that the Arlington Trust Company's lien does take priority over them, it might also be superior to the claims of these creditors, and that of the landlord as to property located in Wyoming County, West Virginia, depending upon whether recordation of the deed of trust in McDowell County, under the circumstances, gave such priority as to property in Wyoming County.

The Referee found that Arlington Trust Company had no lien whatever prior to any other lien creditors, upon any of the property because, in the Referee's opinion, its deed of trust securing its claim was not acknowledged in form or effect as required by the West Virginia Statute, and therefore not recordable. The question presented on the petition for review and the Referee's certificate is whether or not the acknowledgment by the officers of Atlantic Smokeless Coal Company to the trust deed given to secure the loan procured by it from Arlington Trust Company complies with the statutory requirements of the State of West Virginia.

I am of opinion that, while the certificate of acknowledgment is not in the form prescribed by the statute, it does have the required effect. Section 3955 39-1-9, Michie's West Virginia Code of 1949, reads as follows:

"Acknowledgment by Corporations. — The certificate of acknowledgment of a corporation may be in form or effect as prescribed in section four (§ 3950) of this article as far as the words `do certify' and thence as follows: do certify that ................, who signed the writing above (or hereto annexed), bearing date the ........ day of ................, 19....., for ........ (name of corporation), has this day in my said county, before me, acknowledged the said writing to be the act and deed of said corporation.

"Given under my hand this ........ day of ................, 19.....

.................."

The part of the form given in Section 3950 39-1-4 which is referred to in Section 3955, reads as follows:

"State (territory or district) of ........, county of ............, to-wit:

"I, ................, a commissioner, appointed by the governor of the State of West Virginia, for the said State (or territory or district) of ...........; or I, ................, a justice of the peace of the county aforesaid; or I, ......................, recorder of said county; or I, ......................, a notary public of said county; or I, ........... ........, a prothonotary (or clerk) of the ................ court of said county; (or other officer or person authorized to take acknowledgments by section three (§ 3949) of this article, as the case may be) * * *."

The certificate of acknowledgment appended to Arlington Trust Company deed of trust reads as follows:

"State of Virginia

County of Arlington, to-wit:

"I, Mabel Davis, a Notary Public in and for the County of Arlington, Do Hereby Certify that Norman W. Lee, President, and W. J. Hardy, Secretary, of Atlantic Smokelesss Coal Company, parties to a certain Deed, bearing date on the 23rd day of April 1946, and hereto annexed, personally appeared before me in said County the said Norman W. Lee, President and W. J. Hardy, Secretary, of Atlantic Smokeless Coal Company, being personally well known to me as the persons who executed the said Deed and acknowledged the same to be their act and deed.

"Given under my hand and seal this 23rd day of April 1946.

"Mabel Davis (Seal) Notary Public

"My commission expires November 4, 1946."

The deed of trust to which the foregoing certificate of acknowledgment was appended was written on a printed form intended for use in the District of Columbia. In the certificate of acknowledgment the printed words "District of Columbia" were crossed out and the name of the state and county substituted; and all the rest of the form was printed, except that part which is here italicized; the insertions were written in with a typewriter; and of course the notary signed her name with a pen.

It is settled in West Virginia that an instrument which is not acknowledged in form or effect as required by the statute may not be admitted to record; and if nevertheless accepted by the County Clerk and copied in the record books it is ineffective to give notice to creditors or purchasers. Cox v. Wayt, 1885, 26 W.Va. 807.

The present statute prescribing the form of a certificate of acknowledgment of a corporation was passed by the West Virginia Legislature in the year 1931. It was part of a general revision and recodification of the statute law of West Virginia, which was accomplished at that time. Previously, the acknowledgment statute in West Virginia contained requirements other than mere acknowledgment by an officer. This old statute was as follows: "Acknowledgments by corporations. — The certificate of acknowledgment of a corporation or joint stock association may be in form or effect as prescribed in the next preceding section down to the star and then as follows: `Do certify that ______ personally appeared before me in my said...