McAllister v. . Purcell

Clare:, J. Tbe plaintiffs’ mortgage was executed in 1884 and duly registered. An.interlocutory decree of foreclosure thereon was entered in this action in 1890, but before sale made tbe defendants executed a second mortgage to Worth & Worth, in 1897, who are made parties defendant and plead tbat they should be preferred in tbe decree of foreclosure by reason of tbe fact (which is admitted) tbat tbe Justice of tbe Peace wbo took tbe acknowledgment of Purcell, tbe mortgagor, and tbe privy examination of bis wife, was tbe brother of Purcell. Whether this made tbe registration of tbe first mortgage taken upon such acknowledgment and privy examination void, is tbe vital question in this case, for if it did, no notice of tbe first unregistered •mortgage, however full and explicit (Quinnerly v. Quinnerly, 114 N. C., 145) would bind tbe second mortgagee, *264 and the interlocutory judgment of foreclosure was effective therefore only as between the parties thereto. In White v. Connelly, 105 N. C., 72, Turner v. Connelly, Ibid, 72, and Freeman v. Person, 106 N. C., 253, it was held that by virtue of The Code, section 104 (3) the probate of a deed by a Clerk of the Court, though upon an acknowledgment and privy examination taken by a Justice of the Peace, is void, if the Clerk or his wife is a party to the deed or a subscribing witness thereto. Long v. Crews, 113 N. C., 256, holds that an acknowledgment and privy examination taken before a Justice of the Peace is a judicial, or at least, a quasi judicial act, and cites numerous cases where probate and registration were void because based upon an acknowledgment and privy examination before an officer who by reason of his locality had no power to take them. This was a defect apparent upon the face of the record. Long v. Drews went further .and held that the same principle invalidated an acknowledgment and privy examination before an officer who was a party, trustee or cestui que trust in the deed. The decisions have carried the doctrine no further. Here, neither the probate nor the acknowledgment and privy examination was had before an officer who was either party, trustee or cestui que trust in the deed, and the Justice of the Peace and the grantors resided within the county in which the acknowledgment and privy examination were taken, as was provided by The Code, section 1246 (1), and if there had been defects in the last regard it was remedied by the curative Acts (1891, Ch. 12, and 1893, Ch. 293) before the second mortgage was executed. Williams v. Kerr, 113 N. C., 306; Barrett v. Barrett, 120 N. C., 127. There is no principle of law, nor precedent, which invalidates an acknowledgment and privy examination taken be *265 fore an officer wbo has neither any interest in the instrument nor is a party thereto, simply because he is related to the parties. Such proceeding is not advisory, and fhe acknowledgment and privy examination are in the nature of declarations against interest of the relatives making them. The persons claiming thereunder are strangers. Certainly an officer can administer an oath to a relative in an ex parte proceeding in which the officer is neither a party nor interested, and this is of no higher dignity. While propriety might discourage an officer taking acknowledgment and privy examination of instruments where the parties thereto are nearly related to him, there is no illegality attaching to his action. The Court helow properly adjudged that in the decree of foreclosure the second mortgage must be subordinate to the first mortgage. Affirmed.