Keeling v. Hoyt

• Decision Date: 24 February 1891
• Citation: 48 N.W. 66,31 Neb. 453
• Parties: KEELING v. HOYT ET AL.
• Court: Nebraska Supreme Court

31 Neb. 453

48 N.W. 66

KEELING

v.HOYT ET AL.¹

Supreme Court of Nebraska.

Feb. 24, 1891.

Syllabus by the Court.

1. A certificate of acknowledgment to a real-estate mortgage which does not show that the mortgagor voluntarily executed the instrument is invalid.

2. The record of a real-estate mortgage, which is not legally acknowledged, does not operate as constructive notice.

3. A voluntary deed is valid as to a subsequent purchaser with notice.

4. An unrecorded deed is good against everybody except creditors of the grantor, and subsequent purchasers without notice of the first conveyance.

Appeal from district court, Richardson county; BROADY, Judge.Marquett, Deweese & Hall, and E. W. Thompson, for appellants.

J. D. Gilman, for appellee.

NORVAL, J.

This is an action to foreclose a mortgage upon lots in the town of Rulo, in Richardson county, given January 27, 1883, by T. C. Hoyt and wife to W. H. Keeling. The Hoyts, the Lincoln Land Company, and numerous others were made defendants. The Lincoln Land Company claims title to a portion of the lots described in the mortgage by virtue of a warranty deed bearing date January 3, 1883, but which was not recorded until May 16, 1883. A decree of foreclosure was rendered as prayed, and the plaintiffs' mortgage was given priority over the deed to the Lincoln Land Company. The only question raised in this court is, which instrument is entitled to priority? The mortgage was given for money loaned by the plaintiff to T. C. Hoyt. It bears date subsequent to the deed made by Hoyt and wife to the Lincoln Land Company, but was placed on record several months prior to the recording of the deed. But it is claimed that mortgage was not properly acknowledged. If so, it was not entitled to record, and the mortgagee is not protected by the recording of the same. Comp. St. c. 73, § 17; Hooker v. Hammill, 7 Neb. 231. The following certificate of acknowledgment is appended to the mortgage: “State of Nebraska, county of Richardson--ss.: On this twenty-seventh day of January, in the year one thousand eight hundred and eighty-three, before me, the subscriber, personally appeared Tyler C. Hoyt and Amelia Hoyt, to me known to be the same persons described in and who executed the foregoing instrument, and acknowledged that they executed the same. [Seal.] JOHN CAGNON, Notary Public.” To satisfy the demands of the statute, the mortgagor must acknowledge the instrument to be his voluntary act and deed. The certificate of the officer, indorsed on the mortgage in question, does not show that the mortgagors voluntarily executed the instrument, and the acknowledgment is therefore fatally defective. Becker v. Anderson, 11 Neb. 493. 9 N. W. Rep. 640.Spitznagle v. Vanhessch, 13 Neb. 338, 14 N. W. Rep. 417. In Becker v. Anderson the certificate of acknowledgment stated that the mortgage was acknowledged by the mortgagor. It was ruled that the acknowledgment was a nullity. In the second case cited the certificate of the officers attached to the deed showed that the grantors “acknowledged that they executed the same.” The certificate was held invalid. Under the authorities of these cases the plaintiff acquired no rights or equities by virtue of the recording of the mortgage. The plaintiff claims that the appellant is not a bona fide purchaser for value, and therefore the deed cannot take priority over the mortgage. The case of Merriam v. Hyde, 9 Neb. 113, 2 N. W. Rep. 218, is cited to sustain the proposition. In that case Thomas H. Hyde and wife, on the 11th day of March, 1872, executed and delivered to Merriam a mortgage upon certain real estate in the city of Lincoln to secure the payment of a specified sum of money. Subsequently, but prior to the recording of the mortgage, Hyde and wife, without consideration, and with the fraudulent intent to cheat the plaintiff, conveyed the premises to their infant son, Edward B. Hyde. It was held that “an unrecorded mortgage takes precedence of a subsequent conveyance by the mortgagor without consideration.” To the same effect is Snowden v. Tyler, 21 Neb. 199, 31 N. W. Rep. 661. With the holding in those cases we are content, but they do not control the case at bar. The deed from Hoyt and wife to the appellant, while the consideration therein named is nominal, was executed and delivered prior to the making of the mortgage. The deed was valid and binding between the...