Myers v. Boyd

Mr. Justice GreIEn delivered the opinion of the court, January 3d 1881. The Act of 28th May 1715, sect. 2, 1 Purd. Dig. 460, pi. 10, provides as follows: “All bargains and sales, deeds and conveyances of lands, tenements and hereditaments in this province, may be recorded in the said office; but before the same shall be so recorded, the parties concerned shall procure the grantor or bargainor named in such deed, or else two or more of the witnesses (who were present at the execution thereof) to come before one of the justices of the pea'ce of the proper county or city where the lands lie, who is hereby empowered to take such acknowledgment of the grantor, if one, or of one of the grantors, if more.” By the terms of this act, before a deed can be recorded, the grantor must go before a magistrate (other persons have since been authorized), and make acknowledgment thereof. [429] Sect. 8 of tbe same act provides: “ But in tbe case tbe grantor be dead or cannot appear, then the witnesses brought before such justice shall by him be examined, upon oath or affirmation, to prove the execution of the deed there produced; whereupon the same justice shall, under his hand and seal, certify such acknowledgment or proof upon the back of the deed, with the day and year when the same was made, and by whom.” The eighth section of the act provides that no mortgage or defeasible deed shall be sufficient to pass any estate, “ unless such deed be acknowledged or proved and recorded * * * as hereinbefore directed for other deeds.” It will thus be seen that in order that a deed or mortgage may become efficacious it must be acknowledged by the grantor, before a competent officer, who must certify such acknowledgment “ with the day and year when the same was made, and by whom.” The only certificate attached to the. mortgage in the present case is in the following words: “Subscribed and acknowledged before me this eighth day of July 1872.” A mere inspection of this certificate shows that it is entirely destitute of the chief ingredients essential to constitute .a valid acknowledgment. It does not state that the grantor appeared before the officer, though the statute positively requires the personal presence of the grantor before the person who is to take the acknowledgment. It does not state that either the grantor or any one else made an acknowledgment of any kind of the instrument in question, although the statute distinctly directs that the officer shall certify “by whom” the acknowledgment was made. The Act of 24th February 1770, sect. 2, which directs the manner in which married women shall make acknowledgment of deeds executed by them, does not prescribe any form of words in which it shall be done, nor does it direct the officer to certify the acknowledgment in any particular. Yet the decisions under that statute have constantly held that the requirements of the act must be com.plied with, and further, that this must appear in the certificate of the officer, otherwise the deed as to the feme covert grantor is inoperative and will not pass her estate: Watson v. Bailey, 1 Binn. 470; Fowler v. McClurg, 6 S. & R. 143; Evans v. Commonwealth, 4 Id. 272; Jourdan v. Jourdan, 9 Id. 273. How much more is it essential that the requirements of the statute should be observed and pursued, in a case like the present, where the officer is expressly directed to certify to the special facts of the acknowledgment. This certificate contains no information upon the most vital subjects. It does not state what was acknowledged nor by whom any acknowledgment was made, and above all it does not state affirmatively, as it certainly should, that the grantor in the mortgage appeared before the officer for this or any other purpose. Were such a latitude allowed in the performance of this important [430] duty, the opportunities for false personation would be alarmingly increased. In all the particulars mentioned, this certificate is fatally defective, and the necessary consequence, also prescribed by the same statute, follows, to wit, that the mortgage was not entitled to be recorded at all. In Goepp v. Gartisor, 11 Casey 133, we ruled as follows : “ But if a deed or mortgage is defectively registered, or the judgment or lien appears on its face to be null and void, then he (a purchaser at sheriff's sale) is not bound to notice them at all: Magaw v. Garrett, 1 Casey 319—22; Bolton v. Johns, 5 Barr 149. In the last case Chief Justice Gibson says : ‘ The defective registry of a deed is a nullity,’ ‘ and in the case before us the lien filed was a nullity which the purchaser was not bound to notice. Even had actual notice been given him he would have been informed of nothing but an abortive attempt to create a lien where none could exist.’ ” To the same effect is Uhler v. Hutchinson, 11 Harris 110. It follows from these considerations that the learned judge of the court below was in error in his answer to the defendant’s first noint, and in admitting the mortgage in evidence. Judgment reversed, and venire facias de novo awarded-