Mexican Gulf Land Co. v. Globe Trust Co.
| Decision Date | 30 May 1921 |
| Docket Number | 21607 |
| Citation | 88 So. 512,125 Miss. 862 |
| Court | Mississippi Supreme Court |
| Parties | MEXICAN GULF LAND CO. v. GLOBE TRUST CO. et al |
1 CORPORATIONS. Corporate deed executed by secretary to himself as grantee not void, where president also joined.
The fact that a deed from a corporation to an individual to land was executed on the part of the corporation by its secretary who was also grantee in the deed, does not render the conveyance void, where the president of the corporation also joined in the execution of the deed, under section 2766, Code of 1906 (section 2270, Hemingway's Code), which provides among other things, that a corporation may convey its land under the corporate seal and the signature of an officer.
2 ACKNOWLEDGMENT. Corporation's deed need not be acknowledged nor filed for record, as between parties.
A conveyance of land by a corporation, in order to be valid as between the parties thereto, is not required to be acknowledged by the officer executing the same for the corporation, nor filed for record; such a deed being valid without being so acknowledged and filed for record acknowledgment and recording being required for the purpose alone of constructive notice to others subsequently dealing with the land conveyed.
3. CANCELLATION OF INSTRUMENTS. Petition held insufficient to state grounds for cancellation of corporation's deed to its secretary.
A bill in equity by the grantor in a deed against the grantee to set aside and cancel such deed as a cloud upon the grantor's title, the grantor being a corporation, which alleges as grounds for cancellation of such deed that the consideration therein mentioned is "feigned and fictitious;" that the grantee in the deed was the secretary of the grantor corporation, and joined in the execution of the deed to himself, together with the president of the corporation; that the deed was not legally acknowledged by the president of the corporation---states no grounds for cancellation of such deed.
HON. W. M. DENNY, Jr., Chancellor.
APPEAL from chancery court of Harrison county, HON. W. M. DENNY, Jr., Chancellor.
Suit by the Mexican Gulf Land Company against the Globe Trust Company and others. Decree for defendants, and plaintiff appeals. Affirmed and remanded.
Affirmed and remanded.
White & Ford, for appellant.
Section 2799, Code 1906, provides mandatorily that in an acknowledgment to a deed the state and county must be stated. Some states have no such statues; some have them and provide that the directions therein contained are directory merely; some states hold the act of the officer in taking the acknowledgment acts, judicially, others ministerially, and Mississippi, through many decision of this court, holds such an act is judicial. The authorities are uniform that where the act is judicial the jurisdictional facts must appear and the authorities are uniform that where the statute provides how the acknowledgment shall be performed, the courts of the state hold such an act is judicial in its nature, that failure to comply with the statute renders the attempted acknowledgment a nullity.
So, bearing in mind that this court has held in the case cited in original brief and in Tinnin v. Brown, 98 Miss. 378, that where the acknowledgment of a deed is fatally defective, it is not entitled to record and is not constructive notice to subsequent purchasers, we will cite authority to maintain our position.
In this case there was no substantial compliance with the statute. We desire to say that there are cases decided in states where taking an acknowledgment was not held to be judicial and where the statute was only directory and so held to be by the courts of such states, holding that a substantial compliance was sufficient. But in this case we submit there was no sort of compliance. In every case where the statute is mandatory, the courts hold the statute must be complied with.
If wanting, (the acknowledgment) it cannot be supplied; if defective, it cannot be amended; and, if properly authenticated, it cannot be gainsaid nor questioned, except for fraud . . . (citing three Mississippi cases) the officer who takes it performs a judicial act in determining whether it was acknowledged in the mode and manner required by law; and he is required by his certificate to authenticate the judicial conclusion to which he has arrived, etc. Harmon v. Magee, 57 Miss. 415.
The officer who takes an acknowledgment acts in a judicial character his act is an official record. Wasson v. Conner, 54 Miss. 351.
Vol. 1, Corpus Juris, page 810, discusses the question citing authorities on the question of whether taking an acknowledgment is a judicial or ministerial act, and it puts Mississippi in the first class along with many other states with very able courts, and cites the two cases last above referred to. In the case at bar the instrument fails to recite the necessary jurisdictional facts and in this state, the certificate cannot be enlarged by averment. Willis v. Gattman, 53 Miss. 721.
It will be noted by the court that the deed in this case has no caption at all, neither at the head or beginning of the instrument, or before the acknowledgment.
As an illustration of the trend of the law, in states where there are no statutory provisions such as Section 2799, Code 1906, or where, having such provisions, the same are directory, the rule is laid down that: "In order to be regular, a certificate of acknowledgement should in some way show either of itself, or when read in connection with the instrument acknowledged, the state and county where the acknowledgment was taken," and: "Where the venue is not required to be stated by the statute prescribing the form of acknowledgment of certain instruments, an erroneous recital of venue may be disregarded as surplusage." 1. Corpus Juris, p. 829-30.
Every acknowledgment of a deed should show on its face that it was taken within the jurisdiction of the officer certifying it. Leavitt v. Thornton, 108 N.Y.S. 162.
The words "United States of America" is too indefinite as a venue. Montag v. Linn, 19, Ill. 399. A very good case we now refer to the court; in the case of Hardin v. Kirk 95 Am. Dec. (Ill) at page 582. In the Hardin case the county was given. In this case nothing is given anywhere, even in the caption of the deed proper.
A tax deed not acknowledged in the manner required by statute is void upon its face. Matthews v. Blake, 27 L. R. A. (N. S.) 399 (Wyoming). This court, in discussing failure to comply with statutory requirements as to acknowledgments adopts the clearest and most persuasive reasoning we have found. The logic is unanswerable. We quote: Dalton v. Murphy, 30, Miss. 59.
Could anything be clearer or founded on better reason? If one provision of the statute can be disregarded, then why cannot the whole provision even to dispensing with any acknowledgment at all? Where the statute requires an instrument to be acknowledged or proved, before it is entitled to resignation, the record of an instrument, which appears on its face to have been defectively acknowledged or proved, will not import constructive notice to subsequent purchasers in good faith. 1 C. J. 772, Citing Emslie v. Thurman, 87 Miss. 537; Wasson v. Conner, 54 Miss. 351; Tillman v. Cowand, 19 Miss. 262, 12 S. & M. 262; Emeric v. Alvarado, 27 P. p. 362.
We submit therefore it cannot be disputed that in this state a deed cannot be admitted to record until acknowledged as required by statute. The acknowledgment is the most material part of the transaction. It is its culmination. The act is a nullity until it is done, and then to say it can be half way done would be absurd. To make such a rule would abrogate the statute to each individual his own method of making an acknowledgment. A defective acknowledgment as we have seen, is no acknowledgment at all. This doctrine is peculiarly applicable to this state and is so well established as to make assault a vain undertaking.
Leathers & Moore, for appellee.
We direct the court's attention here to the fact that there is no allegation or charge of fraud in this bill of complaint whatever; that this paragraph of the bill of complaint which appears to be the gist of the appellant's case as set out in its bill, does not charge any fraud of any sort or any sort of collusion or unfairness on the part of the Secretary, Leland J. Henderson, in purchasing the said land. It does not appear that the complainant corporation was overreached or defrauded or in any manner treated unfairly with reference to said transaction, but simply sets out the naked, unsupported assertion that the President of the said company did not acknowledge said deed to Leland J. Henderson, as required by the laws of the state of Mississippi.
With reference to the deed itself, filed as an Exhibit to the bill of complaint, it appears that this allegation of the bill is inconsistent with the allegations of the exhibit to the said bill, to-wit: The deed, because the deed and the acknowledgment thereto of the president of the corporation shows on its face, that the president did acknowledge the deed, as president of the corporation in conformity to the laws of the state of Mississippi. Therefore, this allegation in the bill can be of no effect and can have no force whatever in this condition as a pleading. The deed and the acknowledgments to it by the president and the secretary...
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