Milner v. Nelson

• Decision Date: 20 October 1892
• Citation: 53 N.W. 405,86 Iowa 452
• Parties: S. B. MILNER, Appellant, v. NELS NELSON, Appellee
• Court: Iowa Supreme Court

53 N.W. 405

86 Iowa 452

S. B. MILNER, Appellant, v. NELS NELSON, Appellee

Supreme Court of Iowa, Des Moines

October 20, 1892

Appeal from Audubon District Court.--HON. H. E. DEEMER, Judge.

THIS case involves the validity of a chattel mortgage upon certain personal property. The plaintiff is the mortgagee, and the mortgage was executed by one A. B. Case. The defendant purchased the property of Case after the mortgage was executed, delivered, and recorded. The action is to recover the value of the property. There was a trial by the court and it was found that the defendant was the owner, and the plaintiff appeals.

Reversed.

Willard & Willard, for appellant.

If the certificate is to be construed in the light of what is contained in the instrument purporting to have been acknowledged, then we submit the certificate was sufficient to entitle said instrument to be recorded, and that the record thereof imparted constructive notice. Bell v Evans, 10 Iowa 353; Brunswick-Balke-Collender Co. v Brackett, 33 N.W. 214 (Minn.) ; Smith v. Boyd, 5 N.E. 319. Where a certificate of acknowledgment is ambiguous, the court may look to the instrument to which the certificate is attached, as well as to the certificate, for the purpose of determining and arriving at the true meaning of the officer. Wilcoxen v. Osborn, 77 Mo. 621; Lincoln v. Thompson, 75 Mo. 613; Samuels v. Shelton, 48 Mo. 444; McClure v. McClurg, 53 Mo. 173; Ives v. Kimball, 1 Mich. 316; Harrington v. Fish, 10 Mich. 415; Newton v. McKay, 29 Mich. 1; Nelson v. Graff, 44 Mich. 433; Calumet, etc., Co. v. Russell, 68 Ill. 426; Logan v. Williams, 76 Ill. 175; Hiles v. La Flesh, 59 Wis. 465; Middleton v. Findla, 25 Cal. 80; Brooks v. Chaplin, 3 Vt. 281; Angier v. Schieffelin, 13 Am. Rep. 659; Furnam v. London, 13 Serg. & R. (Pa.) 386; Basshor v. Stewart, 54 Md. 376; Kelly v. Rosenstock, 45 Md. 389; Hall v. Gettings, 2 H. & J. (Md.) 380; Wise v. Postlewait, 3 W.Va. 452; Sharpe v. Orme, 61 Ala. 263; Ingraham v. Grigg, 13 Smed. & M. (Miss.) 22; Morse v. Clayton, 13 Smed. & M. (Miss.) 373; Lone v. Shields, 3 Yerg. (Tenn.) 405; Kelly v. Calhoun, 95 U.S. 710. The omission of the grantor's name when it can be supplied by the instrument or signature is not a fatal defect, and it is now generally held that if the name can be ascertained from the deed, the certificate must be sustained. Wise v. Postelwait, 3 W.Va. 452; Phillips v. Ruble, Litt. Sel. Cases (Ky.) 221; Magness v. Arnold, 31 Ark. 103; Sanford v. Buckley, 30 Conn. 344; Wilcoxon v. Osborn, 77 Mo. 621; Lincoln v. Thompson, 75 Mo. 613; Chandler v. Spear, 22 Vt. 388; Donahoe v. Dawson, 2 Ala. 203; Lane v. Shields, 3 Yerg. (Tenn.) 405.

Andrews & Hanna, for appellee.

The question for determination in this case is whether the omission of the name of A. B. Case, the grantor, from the certificate of acknowledgment to the mortgage, is fatally defective; so that the record thereof does not afford constructive notice of its contents. The law on the subject is very fully collected and cited in American and English Encyclopedia of Law, 147 to 159, title, Acknowledgment, paragraph 4; also in a note to Livingston v. Kittell, 41 Am. Dec. 166. As to identity of the party, at page 175. As to omission of grantor's name, page 175. Also in a note to Wickersham v. Reeves, 1 Iowa (Cole's), 413. Nothing will be presumed in favor of a certificate. It must comply substantially with the statutory requirements and state all the facts necessary to show a valid official act. Am. and Eng. Ency. of Law, 149, title, Acknowledgment, par. 4, citing: Tiffany v. Glover, 3 G. Gr. 387; Wickersham v. Reeves, 1 Iowa 413; Dickerson v. Davis, 12 Iowa 353; Newton v. Samuels, 17 Iowa 528; Buell v. Irwin, 24 Mich. 145; Spitznagle v. Vanhesch, 13 Neb. 338; Becker v. Anderson, 11 Neb. 497; Wells v. Atkinson, 24 Minn. 161; Bigelow v. Livingston, 2 E. Minn. 57; Kelley v. Calhoun, 95 U.S. 710; Carpenter v. Dexter, 8 Wall. 513. See, also, Watson v. Bailey, 2 Am. Dec. 462. The following cases expressly hold that the omission of the grantor's name from the certificate of acknowledgment is a fatal defect. Smith v. Hunt, 13 Ohio St. 260; Hayden v. Westcott, 11 Conn. 129. We have been unable to find any Iowa case on the precise point, but some of the Iowa cases treat of the subject of defective acknowledgments, and may throw some light on this case. See Schafenburg v. Bishop, 35 Iowa 60; Bell v. Evans, 10 Iowa 358; Tiffany v. Glover, 3 G. Gr. 387; Wickersham v. Reeves, 1 Iowa 417; Reynolds v. Kingsbury, 15 Iowa 238. In Smith v. Hunt, 42 Am. Dec. 201 (13 Ohio 260), an acknowledgment in this form was held fatally defective; omitting caption. "Personally appeared , who acknowledged that he did sign and seal the foregoing instrument, and that the same is his free act and deed. Wm. Burton, justice of the peace." In Stanton v. Button, 2 Conn. 527, there was an omission of the word "acknowledged" and the court properly held that the certificate did not import that the grantor had acknowledged the deed, and that it was fatally defective. In Hayden v. Westcott, 11 Conn. 129, the name of the person who appeared was omitted, and the certificate varied somewhat from the usual form. There the words were: "Personally appeared , and acknowledged this instrument by him sealed and subscribed, to be his free act and deed." A majority of the court were of the opinion that the certificate did not fairly import that the grantor appeared, for that although the words "by him sealed and subscribed," referred to the grantor, they did not, with certainty, to a common intent refer to the person who appeared to make the acknowledgment. It is the purpose of our statute, that a party may, by ex parte evidence, prove a mortgage so that it may be recorded, and the record thereof afford constructive notice of its contents. It is the peculiar duty of the officer under this statute, to prove by his certificate--which he cannot impeach--the identity of the party who makes the acknowledgment, with that of the mortgagor. The defect in this case, as we think, is the failure of the certificate to prove the identity of the party who pretends to acknowledge with that of the grantor. This fact, under our statute, ought to be proven positively by the certificate. It would be a mischievous rule to establish that a statute of this kind is complied with by taking the intent for what the act should have been, or that the omission of careless officers shall be helped out by such indulgences. Where the acknowledgment is fatally defective the record of the deed does not give constructive notice. Dussaume v. Bennett, 5 Iowa 95; Brinton v. Seevers, 12 Iowa 389; Reynolds v. Kingsbury, 15 Iowa 238. Not even if the record shows it correct. Newman v. Samuels, 17 Iowa 528; Simms v. Hervey, 19 Iowa 273.

ROTHROCK J. ROBINSON, C. J., (dissenting).

OPINION

ROTHROCK, J.

The defendant had no actual knowledge of the mortgage when he purchased the property. The sole question is whether the mortgage was in its form sufficient to impart constructive notice to the defendant. The defect which the defendant claims is fatal to the mortgage is to be found in the acknowledgment, which is in these words:

"STATE OF IOWA, Cass County, SS.

"Be it remembered, that on the 12th day of October, 1887, before the undersigned, James G. Whitney, notary public in and for said county, personally came , to me known to be the identical person whose name is affixed to the foregoing instrument as grantor, and acknowledged the execution of the same to be his voluntary act and deed. Witness my hand and seal the day and year last above written.

"[SEAL.] JAMES G. WHITNEY, Notary Public."

This certificate of acknowledgment is in due form of law, with the exception that the name of the grantor is left blank. It was held by the district court that by reason of said omission the acknowledgment was fatally defective, and did not impart constructive notice to the defendant. The mortgage was signed by A. B. Case, the grantor, and it was filed for record on the day after it was executed, and was duly recorded before the defendant purchased the property. It does not appear that there was any defect in the record of indexes in the recorder's office. The statute of this state prescribing the requisites necessary to an acknowledgment of a deed or mortgage is found in section 1958 of the Code, and is as follows:

"The court or officer taking the acknowledgment must indorse upon the deed or other instrument a certificate setting forth the following particulars: First. The title of the court or person before whom the acknowledgment is taken. Second. That the person making the acknowledgment was personally known to at least one of the judges of the court, or to the officer taking the acknowledgment, to be the identical person whose name is affixed to the deed as grantor, or that such identity was proved by at least one creditable witness, naming him. Third. That such person acknowledged the instrument to be his voluntary act and deed."

There have been a number of cases in this court in which acknowledgments have been questioned and held to be valid or invalid. It was held in Bell v. Evans, 10 Iowa 353 that the certificate is not required to be in the exact words of the statute, and that reference may be had to the body of the deed or mortgage in aid of the certificate of acknowledgment. In Cavender v. Smith's Heirs, 5 Iowa 157, it was held that such a certificate is good, though not in the language of the statute, provided the words used substantially comply with the object and meaning of the law. See, also, Tiffany v. Glover, 3 Greene 387, and Wickersham v. Reeves, 1 Iowa 413. In Scharfenburg v. Bishop, 35 Iowa 60, attention is called to the fact that the statute does not in...