Kee v. Ewing
| Decision Date | 06 September 1906 |
| Citation | 87 P. 297,17 Okla. 410,1906 OK 86 |
| Parties | KEE v. EWING et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A note and mortgage executed and delivered to A., which mortgage is acknowledged by the parties executing the same before B., a notary public, and there is nothing upon the face of the instrument which discloses any interest therein by any third person. Held, that such mortgage is entitled to record by the register of deeds, notwithstanding the fact that A. is president, and B. cashier and stockholder, of the same bank at that time; and held further that such record operates as notice.
[Ed Note.-For cases in point, see vol. 1, Cent. Dig Acknowledgment, §§ 104-111.]
Error from District Court, Custer County; before Justice C. F Irwin.
Action by O. B. Kee against C.J. Ewing and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
On July 5, 1901, C.J. Ewing and Hattie Ewing, his wife, executed and delivered to the Union Trust Company, one of the defendants in error, a real estate mortgage covering certain property in block 34 in the city of Weatherford, Custer county, O. T which mortgage was filed for record in the office of the register of deeds of said county on the 24th day of March, 1902. On November 27, 1901, defendants Ewing and wife executed and delivered to the plaintiff, O. B. Kee, their note, secured by a mortgage upon the same premises covered by the mortgage to the Union Trust Company, and this mortgage was filed and recorded in the register of deeds office in said county on November 28, 1901. And on the same day they executed and delivered to one Sam Wells their note for $460. This note was thereafter, and before maturity, assigned to plaintiff; and, on the 10th day of March, 1902, Ewing and wife executed and delivered a deed to the premises covered by the two mortgages above mentioned, which deed was filed for record on the 8th day of April, 1902. Both of these instruments running to Kee, to wit: The mortgage recorded November 28, 1901, and the deed recorded April 8, 1902, were acknowledged before one O. H. Cafky, a notary public, who, it is admitted, was at the time the cashier of the National Exchange Bank, and a shareholder therein. The acknowledgments to both the mortgage and deed running to Kee were taken by one O. H. Cafky, a notary public, who, at the time of taking such acknowledgments, was the cashier of, and a stockholder in, said bank. Neither Kee nor the National Exchange Bank had any notice or knowledge of the mortgage to the Union Trust Company until the same was placed on record. This action was commenced by O. B. Kee, on the 26th of June, 1902, to foreclose the mortgage and deed treated as a mortgage given by Ewing and wife to him, and making the Union Trust Company a party defendant. Neither Ewing nor his wife appeared in the case, but the Union Trust Company answered, and filed a cross-petition, setting up their mortgage, and asking to have it declared a first lien on the premises. It is admitted that, at the time of executing these various mortgages, Ewing and wife were the owners of the premises described therein. The cause was tried before a referee, who, after making substantially the foregoing finding of facts, as a conclusion of law, held that the plaintiff, Kee, had a first and second lien upon the premises, by virtue of his mortgage and deed, and the defendant Union Trust Company, a third lien by virtue of its mortgage. On exceptions and objection to the referee's report, and confirmation of the same, the court below held the mortgage and deed of Kee to be improperly of record, because of the financial interest of the notary public who took the acknowledgments to the same, and therefore held the Union Trust Company entitled to the first lien, and Kee a second and third lien, on the premises involved. Plaintiff, Kee, filed his motion for a new trial, which being by the court overruled, judgment was entered for the respective parties, as above indicated, and from such judgment the cause comes to this court by case-made.
George T. Webster and Ione Webster, for plaintiff in error.
Flynn & Ames, for defendants in error.
The only question presented by the brief of plaintiff in error is a question arising under the following assignment of error "The court erred in finding that the mortgage of the Union Trust Company was a first lien, and that Kee had a second and third lien on said property." The facts were found by a referee, from whose finding of facts it appears that the Union Trust Company had a mortgage upon the lands involved, given June 5, 1901, and recorded March 24, 1902, executed by one Ewing and wife. On November 27, 1901, Ewing and wife executed a mortgage to the plaintiff in error, O. B. Kee, which was recorded the following day, November 28, 1901. On March 10, 1902, the plaintiff in error purchased another note of Ewing, which was secured by a deed of Ewing and wife, on the same property and recorded April 8, 1902. At the time of the execution and acknowledgment of the two last-named instruments, the plaintiff in error was president of the National Exchange Bank of Weatherford, O. T., and the notary taking the acknowledgment of Ewing and wife to each of said instruments was O. H. Cafky, who was at that time cashier of, and a...
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