Maxwell v. Hartman

• Citation: 8 N.W. 103,50 Wis. 660
• Parties: MAXWELL v. HARTMAN AND ANOTHER, IMPLEADED, ETC.
• Decision Date: 11 January 1881
• Court: United States State Supreme Court of Wisconsin

50 Wis. 660

8 N.W. 103

MAXWELL

v.HARTMAN AND ANOTHER, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed January 11, 1881.

Appeal from circuit court, Ozaukee county.H. G. & W. J. Turner and W. F. Vilas, for appellant.

Foster & Coe, for respondents.

CASSODAY, J.

This action was commenced February 5, 1876, by the plaintiff, as holder and assignee of what is usually known as a “farm mortgage,” bearing date January 9, 1857, with the note and bond in the form usual at the time to foreclose the same. The defendants, Catherine Hartmann and husband, set up, by way of answer, continued adverse possession in themselves, under warranty deed executed August 27, 1863, by Gessner and wife, the mortgagors. The other defendants make no contest. The court found, among other things, that the note and mortgage were made, executed, and delivered as alleged in the complaint; that there was $2,700 due the plaintiff thereon; that the mortgage was duly acknowledged, executed, and delivered by Gessner and wife to the railroad company, and duly recorded January 11, 1857; that lis pendens was duly filed February 5, 1876; but found that Mrs. and Mr. Hartmann had been in the adverse possession, under said deed, as alleged in their answer; that the mortgage was given without consideration; that the book where it was recorded consisted of printed blank forms of mortgages to the railroad in question; that the only writing therein was the filling of the blanks; that there was a label on the back of the book, “Mortgages, No. 5,” with the initials of said railroad, while the other volumes had labels showing that they belonged to the county; and, as conclusions of law, the court found that the complaint should be dismissed as to the Hartmanns, and judgment was accordingly entered. Exceptions to such of the findings as were adverse to the plaintiff were duly filed. Before noticing the grounds upon which we are asked to reverse this judgment, we will consider the other points upon which we are urged to sustain it. It is claimed that the evidence shows, contrary to the finding, that the mortgage was not properly acknowledged, nor properly certified to, so as to entitle it to be recorded as a mortgage in Ozaukee county; and hence, that what purported to be a record was, in law, no record, as against a bona fide purchaser for value. There may be a question whether this finding adverse to the respondents is open for review upon this appeal. In Pettigrew v. Evansville, 25 Wis. 223, it was held that, “under the practice established by our statute in this state, in causes tried by the court alone, the appellate court will not review questions of fact, except those brought before it by the appellant's written exceptions to the findings of fact.” That case was decided in 1870. The amendment of 1872, incorporated in section 3070, Revised Statutes, provides: “Any question of fact or of law, decided upon trials by the court or by referee, may be reviewed, when exceptions to the findings of fact have been duly taken by either party and returned.” Under this statute, it would seem that exceptions taken by a respondent may be available, at least, so far as may be necessary to sustain a judgment. Whether a respondent's exceptions can be made available for the purpose of reversing, and securing a judgment more favorable to himself, it is not necessary here to decide. The construction suggested, however, makes it necessary for us to determine whether the mortgage in question was properly acknowledged, and the acknowledgment properly certified to, so as to entitle the same to be recorded as a mortgage; and, also, whether it ever was, in fact, so recorded. The acknowledgment purports to have been taken by Bartholomew Ringle, as notary public, in Ozaukee county, Wisconsin, but the certificate contains nothing indicating the residence of Ringle at the time, except so far as might be inferred from the venue being in Ozaukee county. The evidence clearly shows, however, that Ringle, at the time of the execution of this mortgage, resided in Dodge county, Wisconsin. Section 57, c. 9, Rev. St. of 1849, provided that “the governor shall appoint, in each organized county of the state, one or more notaries public, who shall be considered state officers, and shall hold their offices for the term of two years, and shall have power to act, by virtue of their office, throughout the state.” This section was in force at the time of the execution of the mortgage in question, and is substantially preserved in section 173, Rev. St. Assuming that Ringle was notary public at the time, then there can be no doubt that he had power to act, by virtue of his office, throughout the state; and it was wholly immaterial in what particular county in the state he happened to reside. It was necessary for him to reside in some county in the state in order to qualify him to hold the office. Having such residence, and being thus qualified, he had power to act in any county in the state. Nor do we think that it was necessary that he should state his residence in his certificate of acknowledgment. The statute in force at the time only required that he should “indorse thereon a certificate of the acknowledgment thereof, and the true date of making the same, under his hand.” Section 8, c. 59, Rev. St. 1849. The same has continued to be the statute ever since. Section 2216, Rev. St. Willard v. Cramer, 36 Iowa, 22, was under a statute wholly unlike ours, for there the notary had no power to act in any other county except the one in which he resided. The same may be said of The People v. Hascall, 18 How. Pr. 118. The testimony shows that Ringle was a notary public at the time, and, as such, he was punishable for any misconduct as such notary. Section 65, Rev. St. 1849; section 180, Rev. St. We see no reason why the same presumptions, which prevail in respect to other officers acting within their jurisdiction, should not apply to notaries public. In Pringle v. Dunn, 37 Wis. 449, this court held that the presumption of due execution could be “overcome only by clear and satisfactory evidence to the contrary, such as is required for the reformation or rescission of a deed or other instrument on the ground of mistake.” It is true that he did not affix his official seal, but it has frequently been held under similar statutes that the certificate of acknowledgment need not be authenticated by the notarial seal. Farnum v. Buffum, 4 Cush. 260;Learned v. Riley, 14 Allen, 109;Baze v. Arper, 6 Minn. 220;Thompson v. Morgan, 6 Minn. 292;The Company v. Glass, 17 Ohio, 542. Such, unquestionably, is the construction given to such statutes. But it is urged by counsel that even if this mortgage was properly acknowledged and certified to, yet that it was never in fact recorded as required by the statute at the time, for the reason that it was not recorded “in a plain and distinct handwriting,” within the meaning of section 121, c. 10, Rev. St. 1849; subd. 2, § 758, Rev. St. The particular objection is that the book in which this mortgage was recorded was composed of printed blanks in the form of farm mortgages, similar to this, and that the only writing with the hand was the filling of the blanks. But the same statute provided that “the words ‘written’ and ‘in writing’ may be construed to include printing, engraving, lithographing, and any other mode of representing words and letters.” Subdivision 19, § 1, c. 4, Rev. St. 1849; subd. 19, § 4971, Rev. St. The only exception provided for is in the case of signatures to original papers. There is no claim that this copy of the record was not complete and perfect. We cannot hold that this record is defective because a portion of it is printed. Certainly a printed record is as effective to protect bona fide purchasers as one wholly in writing. It is also just as beneficial to parties and those in privity with them. The objects of the recording acts are as fully complied with by a printed as by a written record. There is no question but what the book in which the record was made was a part of the public records in the register's office of Ozaukee county. But the statutes required that the register of deeds should keep a general...