Rumph v. Lester Land Co.

• Decision Date: 05 July 1943
• Docket Number: 4-7177
• Citation: 172 S.W.2d 916,205 Ark. 1147
• Parties: RUMPH, CLERK v. LESTER LAND COMPANY
• Court: Arkansas Supreme Court

172 S.W.2d 916

205 Ark. 1147

RUMPH, CLERK v. LESTER LAND COMPANY

4-7177

Supreme Court of Arkansas

July 5, 1943

Appeal from Ouachita Circuit Court, Tom Marlin, Judge; affirmed.

Decree affirmed.

McKay & McKay, for appellant.

Gaughan McClellan & Gaughan, for appellee.

MCFADDIN J. KNOX, J., disqualified and not participating.

OPINION

MCFADDIN, J.

This appeal involves Act 169 of the 1943 General Assembly of Arkansas, which act is the Uniform Acknowledgment Act approved by the Governor and effective (by emergency) on March 4, 1943. The question here is whether Act 169 of 1943 supersedes the previous laws of this State on acknowledgments or merely provides an alternative law on that subject.

Appellant is the Circuit Clerk and Ex-Officio Recorder of Ouachita county, and on June 8, 1943, appellee tendered to the appellant a deed for recording. Appellant refused to record the deed, claiming the acknowledgment was not duly authenticated under Act 169 of 1943, and therefore not subject to recording. The appellee brought this action for writ of mandamus to compel the filing and recording of the deed so tendered; and from a judgment for plaintiff (appellee), there is this appeal.

The deed tendered the appellant was a quitclaim deed covering lands in Ouachita county. The acknowledgment was taken and certified by a notary public in Caddo parish, Louisiana, and was as follows:

"ACKNOWLEDGMENT

"STATE OF LOUISIANA PARISH OF CADDO SS

"Be it remembered, that on this day came and appeared in person before me, the undersigned, a notary public within and for the parish and state aforesaid, duly commissioned and acting L. S. McGee, to me well known as the grantor in the annexed and foregoing deed, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth.

"Witness my hand and seal as such notary public on this 3rd day of June, 1943.

"Mary F. Jennings SEAL

"My commission expires May 5, 1948."

Under § 1825 of Pope's Digest, this acknowledgment was duly certified and authenticated, because that section says: "The proof or acknowledgment of every deed or instrument of writing for the conveyance of any real estate shall be taken by some one of the following officers: . . .

"Second. When acknowledged or proved without this state and within the United States or their territories or the country known as the Indian Territory, or any of the colonies or possessions or dependencies of the United States, before any court of the United States, or of any state or territory, or Indian Territory, or colonies or possessions or dependencies of the United States, having a seal, or a clerk of any such court, or before any notary public, or before the mayor of any incorporated city or town, or the chief officer of any city or town having a seal, or before a commissioner appointed by the Governor of this state."

This court takes judicial notice of the laws of Louisiana (§ 5119, Pope's Digest), and therefore knows judicially that a notary public in Louisiana has a seal. Therefore, the said acknowledgment tendered was duly authenticated under § 1825 of Pope's Digest.

But § 9, subsection 2, of Act 169 of 1943 says: "(2) If the acknowledgment is taken without this state, but in the United States, a territory or insular possession of the United States, the District of Columbia, or the Philippine Islands, the certificate shall be authenticated by a certificate as to the official character of such officer, executed, if the acknowledgment is taken by a clerk or deputy clerk of a court, by the presiding judge of the court or, if the acknowledgment is taken by a notary public, by a clerk of a court of record of the county, parish or district in which the acknowledgment is taken."

In the deed tendered the appellant for recording, there was no such authentication under the said Act 169 of 1943; that is, there was no certificate by any clerk of a court of record in Caddo parish, Louisiana, showing the official character of the notary public who took the acknowledgment. In short, the deed was entitled to record under § 1825 of Pope's Digest unless that section has been repealed or amended by Act 169 of 1943. Has it? That is the question.

We hold that the said Act 169 of 1943 did not repeal, change or modify or in any way impair any law of this state; but provided only an alternative system of acknowledgments. In other words, Act 169 of 1943 is merely permissive. Acknowledgments may still be taken, certified and authenticated just as heretofore; on the other hand, acknowledgments may be taken, certified and authenticated under the Uniform Acknowledgment Act, which is Act 169 of 1943. Two ways are open: (1) the old way; or (2) the way under Act 169 of 1943. Either way reaches the same goal. i. e., the right to be recorded.

The history of the Uniform Acknowledgment Act is enlightening. The first Uniform Acknowledgment Act was approved by the National Conference of Commissioners on State Laws in 1892, and is called herein the "draft of 1892." This was an act of only 5 sections, and it was adopted by the states of Iowa, Louisiana, Massachusetts, Michigan and Tennessee. Section 1 of that act said in part: "Either the forms of acknowledgment now in use in this state, or the following, may be used in the case of conveyances or other written instruments, whenever such acknowledgment is required or authorized by law for any purpose."

This section was considered by the Supreme Judicial Court of Massachusetts, in 1930, in the case of New England Bond & Mortgage Co. v. Brock, 270 Mass. 107, 169 N.E. 803, 68 A. L. R. 37; and that court held that the adoption of the Uniform Acknowledgment Act left unimpaired the previously existing law in Massachusetts covering acknowledgments, saying: ". . . but as the statute permits the use of either, it cannot be said that the implication is controlling."

Likewise in the case of First National Bank of Fulton v. Howard, 148 Tenn. 188, 253 S.W. 961, the Supreme Court of Tennessee in 1923, held that the Uniform Acknowledgment Act (draft of 1892) did not repeal any previously existing laws of Tennessee concerning acknowledgments, saying of said act: "It does not...