Jones v. Berkshire

• Decision Date: 16 October 1863
• Parties: JONES v. BERKSHIRE et al
• Court: Iowa Supreme Court

15 Iowa 248

JONES v. BERKSHIRE et al

Supreme Court of Iowa

October 16, 1863

Appeal from Dallas District Court. COMPLAINANT seeks to foreclose a mortgage made by W. H. Berkshire and wife to one Kahler, in March, 1860, upon certain lands held in the name of the wife. The respondent, Lemon, claims to be a bona fide purchaser of the same premises, without notice of complainant's mortgage, under a deed of September 8th 1860. On the hearing, respondent's position was sustained, and complainant appeals.

Affirmed.

C. C Cole for the appellant.

Casady & Polk for the appellee.

OPINION

WRIGHT J.

That the certificate of acknowledgment attached to the mortgage fails to comply with the requirements of our statute is substantially admitted by appellant's counsel. It is claimed, however, that it is in accordance with the laws of the State (Indiana) where it was executed; that it is, therefore, good and sufficient here, and that when recorded, it imparted constructive notice of its contents to subsequent purchasers. This view is sought to be sustained by §§ 2245, 2246, 2248 of the Revision. Appellant can derive no aid from §§ 2245 and 2246, as there is no pretense that there is a seal attached by the court or officer taking the acknowledgment, nor is there any certificate under the proper authority, attesting the official character of such officer. Section 2248 (being § 1, ch. 30, Laws of 1858) is curative in its character, and was intended to make valid deeds and conveyances executed before that time and acknowledged or proved according to the laws and usages of the State where acknowledged. This mortgage was made in 1860, after the passage of the act of 1858, VOL. XV.--32 and is not, therefore, cured nor affected by its provisions. (Reynolds v. Kingsbury, ante.)

But it is claimed that the execution of the mortgage as stated by complainant in his petition, is not traversed. It is sufficient to say in answer to this position, that appellant mistakes the record. As we read it, there is a full and sufficient denial of the execution of the mortgage, an averment, in express words, that it never was duly acknowledged or recorded, and a like claim that respondent purchased the land without notice of any prior lien or incumbrance.

It is also insisted that as the mortgage was introduced in evidence, without objection, it was not competent for respondent to object to the sufficiency of the acknowledgment on the hearing of the case. This is well answered by the suggestion, that the mortgage was good as between the parties to it, without any acknowledgment and without recording. However defective in these respects, therefore, Lemon could not, on the trial, object to its introduction, for complainant needed this proof to recover against the mortgagor, which he had a right to do, though he might not make his lien effectual as against the subsequent purchaser. Not only so, but, as against Lemon, the mortgage was not inadmissible, for it might have been followed up by proof of actual notice. If no such proof was offered, then, on the hearing, he could claim that he was protected, as the record did not impart constructive notice of the existence of the mortgage.

In this connection appellee insists that the record of the mortgage was not notice, for the reason that it was not properly indexed. It seems that the title to the land in controversy was in the name of W. T. Berkshire, who executed the note secured by said mortgage. The index points to the proper page in the record book; the proper dates of the instrument and the filing; the correct description of the land, the true mortgagee, but gives the mortgagor as W. H. instead of W. T. Berkshire, the holder of the legal title. The point is, that as the name of the wife, the holder of the legal title, was not found in the record, a searcher for incumbrances would have no notice of any mortgage which would affect his title. The index, however, was sufficient to put him upon inquiry. The mortgage itself does not indicate that the wife conveyed any less than the entire right or estate which she held in the mortgaged premises. Having joined with her husband, therefore, the instrument was sufficient (under § 2255, Rev.) to pass any interest which she held in her own right, independently of the husband. If the inquiry...