Muncie National Bank v. Brown
| Decision Date | 03 December 1887 |
| Docket Number | 12,675 |
| Citation | 14 N.E. 358,112 Ind. 474 |
| Parties | The Muncie National Bank et al. v. Brown |
| Court | Indiana Supreme Court |
From the Delaware Circuit Court.
Judgment affirmed.
A. C Harris, W. H. Calkins, R. S. Gregory and A. C. Silverberg for appellants.
C. E Shipley and J. W. Ryan, for appellee.
Cornelia A. Brown brought this suit to foreclose a mortgage on real and personal property executed to her on the 31st day of January, 1885, by her husband, Francis M. Brown. The promissory notes which the mortgage was executed to secure bear date January 13th, 1879, November 22d, 1879, January 22d, 1882, August 29th, 1883, and September 13th, 1884. The personal property is thus described in the mortgage: "The dry goods, carpets, hats, caps, clothing, notions, gentlemen and ladies' furnishing goods, queensware, groceries, and all other goods, wares and merchandise constituting the stock in trade heretofore owned by Francis M. Brown, and contained in the store-room and cellar belonging to and part of the west room on the street grade floor known as the Boyce block, on the north side of East Main street, in the city of Muncie, in said county and State; and, also, all of the wool, rags, feathers, and other country produce, and all of the show and display cases, and store furniture and fixtures, and gas fixtures, and all other property of whatever kind in the said store-room situate as aforesaid, and all of the promissory notes and book accounts now owned by the said mortgagor, for indebtedness growing out of the mortgagor's mercantile business." It is recited in the mortgage, among other things, that "It is hereby stipulated expressly as the true intent of this mortgage to prefer the said claim of the said Cornelia A. Brown, as herein described, over and above all other of the said Francis M. Brown's indebtedness." There is also in the mortgage this agreement: "It is agreed and understood by and between the parties to this mortgage that the said Francis M. Brown shall retain possession of all of said merchandise and personal property hereby mortgaged, and may continue selling and disposing of the said mortgaged merchandise for cash as heretofore, until all of said debts shall become due, or until such preference mortgagee, Cornelia A. Brown, shall demand possession thereof, which she may at any time hereafter do; but that said Francis M. Brown shall, at the end of each and every calendar month hereafter, fully and honestly account for all of the proceeds of such sales, and, after deducting therefrom necessary expenses of conducting such business, shall pay over the remainder to the mortgagee."
Subsequent to the execution of the mortgage to the appellee, Francis M. Brown executed a mortgage to the Muncie National Bank, which it accepted with actual knowledge of the prior mortgage. The bank brought suit to foreclose its mortgage on the 2d day of February, 1885, and asked for the appointment of a receiver. In accordance with the prayer of the complaint, Marcus S. Claypool was appointed a receiver, and as such took possession of the store and goods. Cornelia A. Brown brought this suit after the bank had filed its complaint and secured a receiver. The mortgagor made default and damages were assessed against him. After this had been done the bank filed a cross-complaint, and in conjunction with the receiver filed a motion to set aside the default against Brown. At the same time the other appellants were admitted to defend and were allowed to assail the appellee's mortgage. The trial court sustained the motion to set aside the default as to Francis M. Brown and entered an order setting it aside.
The first proposition argued by appellant's counsel is thus stated: "The mortgage was not entitled to be put of record, and, therefore, was never recorded."
The argument of which this proposition is the foundation rests on the testimony of the notary public by whom the acknowledgment of Francis M. Brown was taken. From that testimony it appears that the notary borrowed a seal in 1871 and used it in authenticating his official certificates, but did not use it in this particular instance. The seal which he attached to the certificate annexed to the appellee's mortgage was obtained at the office where the mortgage was written. The designs of the seals are somewhat unlike, and the words differently arranged. The words of one are and those of the other are "
It can not be assumed that there was no seal, since there was a seal actually impressed upon the paper. On the face of the instrument the certificate was perfect in form and in authentication. We can not, therefore, hold that there was no acknowledgment.
The utmost that can be asserted is, that the notary public did not do his duty as the law requires, by attaching the seal he was accustomed to use. He did, in fact, take the acknowledgment of the mortgagor; he did execute and sign the proper certificate, and he did affix a seal to the certificate. If the acknowledgment must be condemned, it is because the officer did wrong in using a seal not his own. No one can perceive how this breach of duty could have worked injury to any person in the world. Whether the one seal or the other was used did not add to or take from the certificate any real efficacy. If the notary two hours before the acknowledgment had thrown away his old seal and adopted another, certainly no real harm to any person could have been done. Nor is it easy to see how the mere use of one seal instead of another, where both are mere general seals, without any peculiar marks or names, could do anybody any harm. Courts ought not, as it seems to us, to strike down a mortgage for such a breach of duty unless the law imperatively requires it. We can not believe that the law requires such a result in a case where, as here, a notarial seal is used, although not the one the notary kept for use.
We have examined the cases of Mason v. Brock, 12 Ill. 273, Buell v. Irwin, 24 Mich. 145, McKellar v. Peck, 39 Tex. 381, Hinckley v. O'Farrel, 4 Blackf. 185, Dumont v. McCracken, 6 Blackf. 355, Maxey v. Wise, 25 Ind. 1, Pope v. Cutler, 34 Mich. 150, and Wetmore v. Laird, 5 Biss. 160, 29 F. Cas. 843, and our conclusion is that they are not of controlling force, for in none of those cases was the question presented as it is in the case before us. Here a notarial seal was actually used, and the mistake of the officer consisted simply in using one not his own.
The case that most nearly approaches the present is that of McKellar v. Peck, supra, where the seal of the clerk was used; but, conceding that the decision there made was correct, which we doubt, it is obvious that it is not fully in point here. If there had been no seal at all, or if the seal had not been an appropriate notarial seal, a very different question would confront us. Even in such a case, however, it is doubtful whether the error was a fatal one, since there are very respectable authorities justifying the conclusion that the mistake was one that might be cured by amendment. Jordan v. Corey, 2 Ind. 385; Hunter v. Burnsville T. P. Co., 56 Ind. 213; Arnold v. Nye, 23 Mich. 286; Sonfield v. Thompson, 42 Ark. 46.
If, however, we are wrong in our conclusion upon this point it would not change the result, for it would not lead to a reversal. There was no pleading attacking the certificate of the notary public, and, therefore, no issue under which a defence founded on the use of another's seal in attesting the certificate was available. There is a seal attached to the certificate, it is the seal of a notary public, and it has no peculiar marks indicating that it was not the seal of the officer by whom it was used. It is a general seal, and such as our law recognizes as valid. Lange v. State, 95 Ind. 114. The presumption is that the officer did his duty, and this presumption is aided by the indications apparent on the face of the instrument. In order to entitle the parties assailing the mortgage to avail themselves of any breach of duty on the part of the officer, it was necessary for them to affirmatively plead the facts constituting the breach.
It is true that the complaint avers that the mortgage was acknowledged and recorded, and that this averment is met by the general denial, but we do not think that this denial did more than to require the plaintiff to produce an instrument showing on its face due execution, acknowledgment and registry. The presumption in favor of the official acts of the notary, aided, as it was, by the indications on the face of the instrument, made a prima facie case. This prima facie case stands until overthrown. Bates v. Pricket, 5 Ind. 22.
It can not be overthrown, in any event, without some pleading attacking the conduct of the officer, since all that the general denial required of the plaintiff was the production of an instrument perfect on its face and bearing the seal and signature of an officer, apparently regular and in due form. We have many analogous cases in which it is held that an unverified general denial does no more than impose upon the plaintiff the duty of producing an instrument perfect in form. These cases certainly apply where, as here, there is neither imperfection nor irregularity apparent on the face of the instrument, but where, in order to establish an irregularity, it is necessary to investigate the official acts of a public officer. The case, therefore, is much stronger than one in which the mistake or irregularity grows out of the acts of a party. It seems quite clear to our minds that such a field of investigation ought not to be opened without an affirmative pleading challenging the conduct of the officer whose acts are assailed. Any...
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