Stafford v. Morse
Decision Date | 29 December 1902 |
Citation | 54 A. 397,97 Me. 222 |
Parties | STAFFORD v. MORSE. |
Court | Maine Supreme Court |
(Official.)
Report from Supreme Judicial Court, Somerset County, in Equity.
Bill by John N. Stafford against George H. Morse for the redemption of a mortgage. Case reported, and bill sustained.
The bill, answer, notice of foreclosure, record, and certificate of the register of deeds, demand for an account, and response, were put in evidence.
The plaintiff offered to prove that he had no knowledge of where the newspaper in which the notice of foreclosure appeared was printed and published, and it was agreed that the same should be taken as proved if the evidence was legally admissible.
The defendant offered to prove, by oral evidence, by the production of the mortgage, by assignments and quitclaim deed, by the original notice of foreclosure, a copy of which is on the register's certificate, by the production of the newspapers in which the notices of foreclosure were printed and published, by introduction of the records of the registry of deeds of Somerset county, in addition to other evidence stated in the report, all the allegations set out in his answer, to establish the fact of foreclosure of the mortgage—the same to be taken as proved if legally admissible.
The defendant also asked leave to have the register of deeds amend his record and certificate of foreclosure in accordance with the facts stated in his answer, which was to be done if legally admissible.
Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, EMERY, PEABODY, and SPEAR, JJ.
E. N. Merrill, for plaintiff.
J. W. Man son, for defendant.
SAVAGE, J. Bill in equity to redeem from a mortgage. The defendant, holding under the mortgagee, claims an absolute title through a complete foreclosure by publication. The plaintiff denies that the mortgage was legally foreclosed. And this is the sole issue here. The plaintiff urges several objections to the foreclosure proceedings, only one of which do we consider, as we think that one is necessarily fatal.
The statute (Rev. St. c. 90, § 5) requires one who seeks to foreclose a mortgage by publication to cause a copy of the printed notice, and the name and date of the newspaper in which it was last published, to be recorded in the registry of deeds in which the mortgage deed is, or by law ought to be, recorded, within 30 days after such last publication. That the printed notice was recorded in this case is not in dispute. The defendant says in his answer that it was recorded within 30 days after the last publication. But the certificate of the register, which by statute is made prima facie evidence of the fact of such publication, does not prove the allegation. It is not dated, and there is no record evidence that the printed notice was seasonably recorded. By statute every instrument is "considered as recorded" at the time when the minute of its reception is made by the register upon the instrument itself. Rev. St. c. 7, § 15. In order to effect a legal foreclosure, all conditions required by statute must be strictly performed. Freeman v. Atwood, 50 Me. 473; Bragdon v. Hatch, 77 Me. 433, 1 Atl. 140; Hollis v. Hollis, 84 Me. 96, 24 Atl. 581; Belfast Savings Bank v. Lancey, 93 Me. 422, 45 Atl. 523, 74 Am. St. Rep. 361. And to support a foreclosure title, the performance of all statute conditions must be proved.
The defendant seeks to supply the want of record evidence by oral evidence, or by an amendment of the record. And it is agreed by the parties that, if this can legally be done, it is to be regarded as done. We are brought, therefore, to a consideration of the question whether evidence aliunde the record is admissible, when the record is silent, to prove that the printed copy was received for record within 30 days from the last publication, or whether that fact must appear upon the record itself. Much has been said in argument upon the question whether the statute contemplates that the register's certificate of publication should be recorded. The defendant contends that it does not, and then argues that, ex necessitate rei, the time of recording the printed copy must be proved aliunde. It is true that there is no statute specifically requiring registers to record the time when notices of foreclosure are received for record, either by certificate or otherwise. So there is no statute requiring registers to record upon the book where the instrument is recorded the time when any other instrument is received. Yet it is believed that, throughout the entire history of this state, registers have well-nigh universally recorded, and have regarded it as a part of their duty to record, on the book, with the record of the instrument, the date on which it is received for record, which, of course, is the date of record, and that failure to do so, if any, has been due to inadvertence. The very universality of the practice for so many years is of itself significant of the proper interpretation of the statutes of registry. It is the interpretation which seems to have suggested itself to all concerned. The statute requires the register to minute on every instrument the time it is received for record. Rev. St. c. 7, § 15; Id. c. 73, § 28. And the official memorandum seems to have been then regarded as a part of the instrument itself for recording purposes. The courts and the profession have invariably regarded the records of the date of receiving instruments for record as they appear in the books, with the records of the instruments, as satisfactory and sufficient evidence to determine priority of title by priority of record; and yet, unless these records are made as a part of the official duty of the registers, they are not evidence at all.
But if we were to concede the premises of the defendant, we do not think it would necessarily follow that it need not appear of record that the printed notice of foreclosure was seasonably received for record. The design of the statute undoubtedly is that the record shall give notice of the foreclosure. To give notice of the foreclosure, it must give notice of the successive essential steps necessary to complete foreclosure, because, if any are missing, it is not a foreclosure, and notice of such imperfect proceedings would not be notice of a foreclosure. A defective record is not notice. Hill v. McNichol, 76 Me. 314. The time of recording is essential, because the foreclosure proceedings are null and void unless the printed notice is recorded within 30 days after the last publication. The argument, therefore, is not based upon any specific provisions of any statute, but, rather, upon what is believed to be the reasonable and proper, if not necessary, interpretation of the statute requiring registry of a published notice of foreclosure within 30 days. To restate it, it is that registry within 30 days is essential to the very validity of the foreclosure. Ordinarily an instrument of conveyance becomes effective without any regard to the registry. It is valid whether registered or not. It conveys title whether registered or not. Registry merely serves to give notice to third parties. In law, it is notice. But a foreclosure does not become a foreclosure unless it is recorded, and recorded within 30 days. The record becomes a part of the muniment of title. And if there is no title by record within the 30 days, there never can be. Inasmuch as the time of record is essential to the validity of the title created by record, that also must appear of record, or else there fails to appear a complete record title. All that appears of record may be true, and yet no title. It is not muniment of title. It does not prove title.
One cannot set it up as the last step in the proof of a record title—that is, a title not merely protected, but created by registry— without showing something that the record does not contain. The step is not long enough to reach across the chasm. Hence we think that the time of recording must appear of record.
It is suggested that the statute provision making the register's certificate prima facie evidence of the fact of publication raises a fair implication that the fact of publication may be shown otherwise. Whether that be so or not, it is certainly true that the fact that there was no publication may be shown otherwise. It is prima facie evidence, but not conclusive. The certificate may be attacked, but is sufficient as far as it goes, if not attacked. Whether or not there may be a vital distinction, in respect of the prima facie evidential force of the certificate, between the case of one who seeks to prove a title created by record, and who may stand with a record or fall for want of one, and that of him who would attack such a title, need not be decided. Here we are not concerned with the contents of the certificate, but with what it does not contain, or, to speak more exactly, with the fact that it is not shown by record, either in the certificate or out of it, that the notice was recorded within 30 days from the last publication.
There being no record evidence that the printed notice was recorded seasonably, can the want of it be supplied by evidence aliunde? We think not. Besides the reasons already stated, there is a strong reason to be deduced from the very...
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Winter v. Casco Bank and Trust Co.
...the moving party. In order to effect a legal foreclosure all steps required by the statute must be strictly performed. Stafford v. Morse, 97 Me. 222, 223, 54 A. 397 (1902). It may be determined at trial whether the purported foreclosure by the Defendant Bank met that The entry will be: Appe......
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...must be strictly performed." See Winter v. Casco Bank and Trust Co., 396 A.2d 1020, 1024 (Me. 1979); see also Stafford v. Morse, 97 Me. 222, 223-25, 54 A. 397, 398 (1902). In Winter, the Court held that even the minor procedural requirement that the foreclosure notices be attested could not......
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...We have also held that courts do not have the power to extend the time limits in the foreclosure statutes. See Stafford v. Morse, 97 Me. 222, 224-27, 54 A. 397, 398-99 (1902) (holding undated certificate of publication insufficient under the statute and because 30-day time period for record......
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United States v. Harriman
...Foreclosure Judgment void. Id. at 2 (citing Winter v. Casco Bank and Trust Co., 396 A.2d 1020, 1022–24 (Me.1979) and Stafford v. Morse, 97 Me. 222, 223, 54 A. 397 (1902)). The United States filed two responses. First, it contends that the Harrimans' argument fails to distinguish between the......