Dodd v. Parker

Smith, J. Mrs. Joyner ivas the owner of three lots in the city of Little Rock, by virtue of a- deed of gift from her father, made in 1872. In 1880 she joined her husband, W. J. Joyner, in executing a mortgage upon the premises, to secure his debt of $2,000 to Mrs. Dodd. W. J. Joyner acknowledged this mortgage and directed the Justice of the Peace to go to his wife’s house for .the purpose of taking her acknowledgement. But this, as it appears, was never done. Nevertheless, that officer certified that Mrs. Joyner had áppéared before him and released her dower. And the instrument, "which contained no relinquishment of dower, was with its certificate, placed upon record. In 1882 the Joyners, husband and wife, sold and conveyed the property for $4,000 in cash, to Edward W. Parker, who had actual notice of the existence óf the mortgage. Mrs. Dodd then advertised the lots for sale, pursuant to a power contained in the mortgage. ' But Parker succeeded in the Court below in perpetually enjoining the sale, upon the ground that it would confer no title upon a purchaser, Avhile it would cloud his own title. • We do not stop to consider whether a mortgage of a married AAuiman’s o\vn-land, acknowledged by her -to have been executed lor the purpose of relinquishing dower, is' effectual to carry any estate whatever, because this mortgage was never acknowledged at all Nor need we discuss the question whether a mortgage signed by a married woman, but never acknowledged, is good between' the original parties; for here the rights of a third party have intervened. Our statute of mortgages (Gantt’s Digest, Sec; 4288) is peculiar. It provides that every mortgage shall be a lien on the mortgaged property from the time it is filed for record and not before; which filing shall be notice to all persons of the exisence of the mortgage. And it cannot be legally filed for record until is has been properly acknowledged. Hence it has been uniformly held in this State that an unregistered mortgage, or one which' has been improperly admitted to registration, constitutes no lien upon the mortgaged property, as against a stranger, notwithstanding. he may have actual knowledge of. its existence. Main v. Alexander, 9 Ark., 112; Hannah v. Carrington, 18 Id., 105; Jacoway v. Gault, 20 Id., 190; Carnall v. Duvall, 22 Id., 136; Little v. Dodge, 32 Id., 453; Martin v. O’Brannon, 35 Id., 67; Conner v. Abbott, Ib., 365. There is nothing in the Bettenhent Act of March 8, 1883, which can help the appellant’s case. The sixth section of that Act does, indeed, profe-s to cure all defects in the acknowledgement of conveyances recorded prior to January 1, 1883, which purports to have been acknowledged before any officer, and which have not heretofore been invalidated by any judicial proceeding. This would hardly cover the case where the grantor had never made any acknowledgement at all, but the officer had falsely certified to that fact. But it is sufficient to say that the Chancellor had rendered his decree in this cause nearly twelve months before the passage of that law. There is some evidence in the record that Mrs. Dodd has lost her money, or at least the security for it, through the wiles of W. J. Joyner, supplemented by her hus band’s credulity, unreasonable indiscretion and overweening confidence in the honesty of the human race. It was Joyner who prepared the mortgage and the certificate of acknowledgement. Yet Parker had no apparent connection with the scheme. He bought the property upon the advice of counsel that, according to the laws of Arkansas the mortgage was no incumbrance as against a subsequent purchaser. And we cannot disturb a settled rule of property merely to relieve parties against the consequences of mistaken judgment, or of their own imprudence or folly. Affirmed.