Thompson v. Morgan

• Decision Date: 01 January 1861
• Citation: 6 Minn. 199
• Parties: WILLIAM C. THOMPSON et al., vs. CALEB MORGAN.
• Court: Minnesota Supreme Court

Page 199

6 Minn. 199

WILLIAM C. THOMPSON et al.,vs.

CALEB MORGAN.

Supreme Court of Minnesota.

Appeal from the judgment of the district court, Ramsey County.

Folsom, the owner of the land, made a mortgage to Morgan, in 1854. This mortgage had only one attesting witness, and the certificate of acknowledgment was not under the seal of the notary making it. The mortgage, however, was placed on record. Folsom subsequently conveyed to Babcock the deed reciting that it was made subject to the Morgan mortgage, describing it. Babcock executed a mortgage to Thompson. After this, the act of July 26, 1858, was passed, making valid, deeds and mortgages before that time executed and recorded with but one witness.

Morgan brought suit to foreclose his mortgage, making Thompson one of the defendants. Thompson answered, putting the plaintiff's mortgage in issue. There was a judgment below affirming the validity of the Morgan mortgage, and for its foreclosure.

Points and authorities for appellants: —

1. The mortgage relied on, bearing date 22d October, 1854, which was Sunday, and the acknowledgments of the notary being of the same date, without his seal of office and attested by but one witness, was not entitled to record, and therefore no notice. Comp. Stat., 398, 400, ch. 35, §§ 8, 23, 24; Sigourney v. Larned, 10 Pick., 72; Kerns v. Swope, 2 Watts, 75; 44 Me., 25; 5 Blackf., 92.

Points and authorities for respondent: —

1. The respondent's mortgage, even if defectively executed, is an equitable mortgage or lien, and a court of equity will enforce it, according to the justice of the case. Russell v. Russell, 1 Lead Cas. in Eq. (Hare & Wallace's notes), 519, and cases there cited; 1 Hill. Mort., 599, ch. 22.

2. The appellant Thompson is not a bona fide purchaser without notice as against the respondent's mortgage. The respondent's mortgage was properly recorded; the statute authorizes the recording of a deed which has attached to it a proper certificate of acknowledgment, without reference to the number of witnesses to the deed. Comp. Stat., 400, § 23. This mortgage has a proper certificate of acknowledgment attached — signed by an officer authorized by law to take it. The omission of his official seal is unimportant, as the statute in force at that time did not require that the seal be affixed. Rev. Stat., 43-4, ch. 4, art. 6. Besides, the appellant's mortgage, the only foundation of his claim upon the premises, is acknowledged in the same manner, and the certificate is without seal, the same as ours. If the record of our mortgage is not valid, the appellant's claim must also fall. The deed from Folsom to Babcock (appellant's grantor or mortgagor) is upon its face made subject expressly to the respondent's mortgage, — the mortgage being fully described and the record thereof referred to in the deed. It cannot be pretended that Babcock acquired an unincumbered title by that deed, and he could convey or mortgage only such title as he had; the record of Babcock's deed showed the incumbrance to which his title was subject, and was notice to all persons claiming under him, even if the mortgage had not been recorded at all. There is no pretense in the appellant's answer that he had no actual notice of the respondent's mortgage, at the time of the execution of that under which he claims, and the court will not presume that he had not such notice.

3. The deed from Folsom to Babcock properly executed, acknowledged, and recorded, clearly describing the respondent's mortgage, and made expressly subject to it, was not only a clear and explicit recognition, of the existence and validity of the mortgage, but was an express ratification of it, as against all persons claiming under that deed; and this ratification was before the appellant had acquired any interest in the property. "A party is estopped from denying a title which is recognized in a deed under which he claims." Hart v. Johnson, 6 Ohio., 87; 2 U. S. Dig., 202, § 83, S. C.

4. The statute of July 26th, 1858, Comp. Stat., 403, § 53, cures the defective execution of respondent's mortgage, and, by force of that statute, such mortgage stands with the same force and effect in all respects from its inception as if it had been originally executed in accordance with the statute then in existence. Smith Com. on Const., 409 and 410; Watson v. Bailey, 1 Binn., 470; Barnet v. Barnet, 11 Serg. & R., 72; Tate v. Stooltzfoos, 16 Serg. & R., 35; Satterlee v. Matthewson, 16 Serg. & R. 169; Mercer v. Watson, 1 Watts, 358; Satterlee v. Matthewson, 2 Peters, 380, (8 Curtis, 147); Watson v. Mercer, 8 Peters, 88, (11 Curtis, 38); Charles River Bridge v. Warren Bridge, 11 Peters, 420, (12 Curtis, 496); Balt. & Susquehanna R. R. Co. v. Nesbit, 10 How. U. S. 395, (18 Peters, 428).

W. C. Thompson, for appellants.

H. R. Bigelow, for respondent.

FLANDRAU, J.

The mortgage from Folsom and wife to Morgan, executed on the twenty-third...