Parret v. Shaubhut

• Decision Date: 01 January 1861
• Citation: 5 Minn. 258
• Parties: ABINGTON PARRET et al. vs. JOHN J. SHAUBHUT et al.
• Court: Minnesota Supreme Court

5 Minn. 258

ABINGTON PARRET et al.vs.

JOHN J. SHAUBHUT et al.

Supreme Court of Minnesota.

Error to district court, Blue Earth County.

The defendants in error sued Parret and wife and Thompson, to foreclose a mortgage executed by Parret and wife, May 14, 1859, and recorded June 22, 1859, but in recording which, the register omitted the name of one of the witnesses, so that by the record it appeared to have but one. Thompson had a mortgage junior in date to that of the plaintiffs below, but which was properly recorded. Judgment for the plaintiffs in the action against the mortgagors and Thompson, for the foreclosure of their mortgage, was entered.

Tourtellotte & Pitcher, for plaintiffs in error.

Willard & Barney, for defendants in error.

FLANDRAU, J.

On the eighth day of June, 1858, Parret and wife executed a mortgage upon the land in question to Charles Thompson, to secure the sum of one thousand dollars, payable in one year, which mortgage was properly recorded.

On the fourteenth day of May, 1859, Parret and wife executed another mortgage upon the same premises to John J. and Henry Shaubhut, to secure the sum of four hundred and forty-nine dollars and sixty-nine cents, payable in two months; which mortgage was properly executed and delivered, but in the recording of the same the register of deeds omitted one of the attesting witnesses, and the same appeared upon record to have been executed in the presence of but one witness.

On the fifteenth day of July, 1859, Thompson voluntarily cancelled his mortgage of June 8, 1858, and took a new one for a greater amount, with interest at three per cent. per month. The consideration for the second mortgage taken by Thompson was the first debt of one thousand dollars, with accumulated interest. This mortgage was duly recorded on the sixteenth day of July, 1859. At the time Thompson took this second mortgage he had no notice of the existence of the Shaubhuts' mortgage, except such as was conveyed to him constructively by the records.

The contest is for priority of lien between the mortgage of the Shaubhuts and the second mortgage of Thompson. On the trial below, before the court, without a jury, several questions were raised by the defendant Thompson. He claimed to have acted, in cancelling his mortgage, in ignorance of the fact that another mortgage had intervened in favor of third parties; and also, that he was induced by fraud to cancel his first mortgage. Both of these points were found against him by the court, and we think correctly, upon the theory which obtained with the court in the decision of the case. If the Shaubhut mortgage was well recorded, Thompson could not successfully allege ignorance of its existence. The equitable doctrine that a party may have relief from his acts when done under an ignorance of facts, has no application to questions of this character, at least, when the rights of third parties would be affected; but obtains in cases of sales of property, where some fact known to the vendor and unknown to the vendee, which would materially influence the sale, is suppressed; as, if a man should sell a house, situated in a distant town, which he knew at the time to be burned down, and of which fact the vendee was ignorant; the vendee in such case would be entitled to a rehibition of the contract. In such cases the fact suppressed must be peculiarly within the knowledge of one party, and impose upon him an obligation in good conscience to disclose it, and not within the knowledge of the other, who must also be free from any obligation or duty to discover it. 1 Story Eq. §§ 208 to 217. This case does not present a question involving this doctrine. The ignorance of the defendant Thompson, as to the mortgage of the Shaubhuts, must be decided upon the registry acts alone. The claim that Thompson was induced to cancel his first mortgage by fraud is not sustained by the proof, and the court was clearly right in finding both these points against him.

The real question in the case is whether the record of the Shaubhut mortgage was notice for any purpose. The statutes of this state concerning the execution of conveyances of real estate, require that they shall "be executed in the presence of two witnesses, who shall subscribe their names to the same as such." Comp. Stat. 398, § 8. To make a deed of any interest in real estate good as against subsequent purchasers, in good faith and for a valuable consideration, of the same real estate, the deed must be recorded. Comp. Stat. 404, § 54. To entitle a deed to record, it must be executed, and acknowledged by the party executing the same, as required by law, Comp. Stat. 404, § 57; and there is the further provision on page 405, § 60, making it a misdemeanor for any register of deeds to record "any conveyance, mortgage,...