Wilkins v. Reed
| Decision Date | 21 December 1927 |
| Citation | 300 S.W. 588 |
| Parties | WILKINS v. REED et al. |
| Court | Tennessee Supreme Court |
Suit by A. S. Wilkins against Horace B. Reed and others. From a judgment dismissing his bill, complainant appeals. Affirmed.
E. B. Madison and Frank K. Boyd, both of Athens, for Wilkins.
D. Sullens Stuart, of Cleveland, for Reed and others.
This appeal presents a question of priority arising under our registration laws . The defendant bank took, as security for a loan, a deed of trust on certain lands, which was properly executed and acknowledged and contained a correct description of the lands. Complainant, a creditor of the landowner, grantor in the trust deed, filed his bill to attach this land, and asserts priority over the trust deed creditor on the ground of an alleged defect in the registration of that instrument, in that, while in all other respects regular and complete, the signature of the notary public to his certificate of acknowledgment was omitted by inadvertence of the register, it being conceded, however, that this signature had been duly affixed by the notary and so appeared when the instrument was delivered for registration. Does the omission of the register to copy on his records this signature of the notary to his certificate constitute such a defect in the registration as to give a subsequent attaching creditor priority? The chancellor held that it did not and dismissed the bill.
No controlling Tennessee case is cited. Nor do we find any reported case holding such a defect fatal. It will be found that, in every case in which a purchaser or creditor has been given priority over a holder under a registered instrument, the defect recognized went to the issue of notice of the transfer in some form or degree, or involved the authority to record, such as the omission, in fact, of the officer's signature to his certificate. The leading case, chiefly relied on by counsel for appellant, of Prouty v. Marshall, 225 Pa. 570, 74 A. 550, 25 L. R. A. (N. S.) 1213, is an illustration of the first class. Here the instrument was recorded under the wrong name, and it resulted, said the court, that "no notice of the mortgage, either actual or constructive, was given to the purchaser," who bought after a search of the records. Throughout that opinion will be found language emphasizing the essentiality of the element of notice — that the record, including the required index, shall be in such shape that examination thereof will supply notice to the searcher of the previous transfer of the identical property. Many of the cases involve defects in description of the property. Baldwin v. Marshall, 2 Humph. 118; Lally v. Holland 1 Swan, 401; and Building & Loan Ass'n v. Rodgers, 104 Tenn. 439, 58 S. W. 234, cited for appellant, are all of this class.
These holdings are consistent with the principle above noted, being rested upon this doctrine of notice. Unless the description is adequate and correct, obviously this vital element of notice is wanting on the face of the record.
This case is not within the class referred to in 19 A. L. R. 1074-1077, and 29 A. L. R. 964, wherein it was correctly held that:
"The omission of the officer's signature to the certificate of acknowledgment is fatal."
In this state it has been repeatedly held that registration on a defective probate gives no priority. The instrument is not entitled to registration. Henderson v. McGhee, 6 Heisk. 56; Hitt v. Coal Co., 124 Tenn. 334, 342, 139 S. W. 693; Childers v. Coleman, 122 Tenn. 109, 126, 118 S. W. 1018. But here there was no defect in the acknowledgment, in fact or in form. The instrument was clearly entitled to registration. Our cases cited do not deal with the situation here presented.
The issue narrows to the inquiry whether or not a defect, such as we here have, in the recording of the authority of the register to record the instrument, is fatal. It is obvious that such a defect does not affect the element of notice to an interested party of the essential fact of a previous transfer of the property. Reliance is had for appellant upon the provision in Shannon's Code, § 3698, that:
"With the deed or instrument shall be registered all certificates of probate or acknowledgment, with the certificates for the authentication thereof," etc.
In 34 Cyc. at p. 588, it is said:
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