Stafford v. Morse

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, It. S., chap. 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 thirty 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 ivas recorded Avithin thirty days after the last publication. But the certificate of the register, Avhich 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 Avas 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. R. S., c. 7, § 15. In order to effect a legal foreclosure, all conditions required by statute must be strictly performed. Freeman v. Atwood, 50 Maine, 473; Bragdon v. Hatch, 77 Maine, 433; Hollis v. Hollis, 84 Maine, 96; Belfast Savings Bank v. Lancey, 93 Maine, 422. And to support a foreclosure title, the performance of all statute conditions must be proved. [224] 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 thirty days from the last publication, or whether that fact must appear upon the recoi'd 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. R. S., ch. 7, § 15; ch. 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 [225] 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 Maine, 314. The time of recording is essential, because the foreclosure proceedings are null and void unless the printed notice is recorded within thirty 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 thirty days. To re-state it, it is that registry within thirty days is essential to the very validity of the foreclosure. .Ordinarily an instrument of conveyance becomes eifective 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 thirty days. The record becomes a part of the muniment of title. And if there is no title by record within the thirty 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 a 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 [226] 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 to 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 thirty 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 purpose of our system of registration of land titles, and that is, certainty and security of land tenure. The stability of land titles depends in a large degree upon the certainty of record evidence. In Chase v. Savage, 55 Maine, 543, a mortgagor sought to extend the time when foreclosure would become absolute by showing that the mortgagee had fraudulently misstated to him the time when the right of redemption would expire. The court, after saying that the claim was not sustained by the evidence, added words which are peculiarly appropriate here. “Besides,” the court said, “the record was the only fountain from which such information could flow. To that place all parties interested could and must resort. Otherwise the record, designed to protect the interests of all, becomes a nullity, since it might be avoided by parol testimony, or the weight of testimony as judicially decided, based upon the imperfection of human memory, rather than the recorded certainty.” Nor can the record be now amended. The record which makes a foreclosure legal and complete must be made within thirty days from the last publication. The record as it is on the last one of these [227] thirty days is the record that must stand. No later amendment could be recorded within the thirty days, and so be in compliance with the statute requirement. A record which is a muniment of title, and which must exist as such within thirty days, or not at all, cannot be subsequently amended so as to make that good, which never was good within the thirty days. The foreclosure relied upon by the defendant is, therefore, ineffectual t'o give him absolute title. It is unnecessary to decide, and we do not decide, the other questions discussed by counsel, namely, whether the publication of notice as described in the register’s certificate was sufficient, and if not, then whether proper publication in fact may be otherwise shown. The plaintiff is entitled to redeem. In accordance with the stipulation, the case is to be remanded to the court below to ascertain the amount due on the mortgage. Bill sustained with eosts. Case remanded in accordance with stipulation.