McAdow v. Black

• Decision Date: 02 February 1882
• Citation: 4 Mont. 475
• Parties: PERRY W. McADOW v. LEANDER M. BLACK.
• Court: Montana Supreme Court

4 Mont. 475

PERRY W. McADOW

v.LEANDER M. BLACK.

Supreme Court of the Territory of Montana.

Filed February 2, 1882.

The acknowledgment and recording of a deed or power of attorney is no part thereof, and, as between the parties thereto, such instruments are good without acknowledgment or record, these requirements being for the benefit of third persons. Since 1876 a seal is no longer necessary to instruments and conveyances, and its absence is entirely immaterial.

Whatever will validate a mortgage (or deed) between the parties thereto will also render the same valid as to third parties with notice.

Where a principal ratifies the mortgage executed by his attorney in fact by accepting the money in virtue of it, he cannot afterwards deny its validity by repudiating the power of the attorney.

From First district, Gallatin county.

E. W. & J. K. Toole, for appellant.

Sanders & Cullen, for respondent.

WADE, C. J.

This is an appeal by plaintiff from a judgment in favor of defendant in an action to foreclose a mortgage executed by the defendant Black, by one Z. H. Daniels, his attorney in fact, to the plaintiff, to secure the payment of a certain promissory note for $1,386, due in 60 days from date, and dated April 23, 1878. The defendant Black denies the validity of the mortgage, alleging that the attorney in fact who executed the same was not legally authorized so to do, and claims title by virtue of a purchase by him at sheriff's sale upon a judgment subsequent to the mortgage, and also by a conveyance from Black, the mortgagor, to the defendant Toole, and from Toole to Story, which conveyances were subsequent to the mortgage. The principal question presented by this relates to the authority of the attorney in fact to execute the mortgage aforesaid. If he was not legally authorized, the judgment creditor takes the property free from mortgage. If he was legally authorized, the property is subject to the prior lien of the mortgage. For the purpose of showing the authority of Daniels to borrow of the plaintiff the money in the complaint mentioned, and the direction in writing signed by Black to execute the mortgage as his attorney in fact, and that he did so borrow the money and execute the mortgage upon a letter of instructions to him so to do, and after having accounted for the loss of said written instructions, the plaintiff sought to prove the contents of the writing, which was objected to, for the reason that it was not shown to comply with the requirements of section 203 of the Revised Statutes of the territory concerning conveyances of real estate, which objection was sustained. The plaintiff also offered to show that any and all rights of Story were acquired with a full knowledge of all facts contained in the letter of instructions, as well as of the execution of the note and mortgage by Daniels in pursuance of the same. But the court held the testimony incompetent, for the reason that it did not comply with the requirements of section 203, aforesaid, and the same was excluded. The note and mortgage were excluded for the same reason, and bills of exception were properly saved. Section 203 of the statute upon which the objection to this testimony was based provides as follows: “Every power of attorney or other instrument in writing containing the power to convey any real estate as agent or attorney for the owner thereof, or to execute as agent or attorney for another any conveyance whereby any real estate is conveyed or may be effected, shall be acknowledged or proved, and certified and recorded, as other conveyances whereby any real estate is conveyed or effected, are required to be acknowledged or proved, and certified and recorded.”

This section was enacted January 12, 1872, and must be construed in connection with section 1163 of the Revised Statutes, enacted February 3, 1876, which...