Gilbert v. Jess

Cole, J. The circuit court held the mortgage valid in respect to a portion of the mortgaged premises, and from this decision neither of the defendants has appealed. In determining [114] tbe question whether the mortgage is now a valid lien upon the other portions of the mortgaged premises, it is necesssary to consider whether it was essential that it should have been witnessed in order to create such a lien as between the mortgagor and mortgagee, or as between the plaintiffs and a purchaser of the equity of redemption with actual notice of its existence. The mortgage was executed under the territorial statute of 1839. It was sealed and properly acknowledged, but not witnessed. And it is said that such an instrument was ineffectual to create even a lien upon real estate. In the case of Myrick v. McMillan, 13 Wis., 188, we had occasion to put a construction upon the provisions of the territorial statute in respect to the execution of deeds. There the deed was not acknowledged, and the question arose whether it was essential that it should be in order to pass the legal title, and it was held that it was not. This decision was followed in the case of McMahon v. McGraw, 26 Wis., 614, where it was again held that the legal title wrould pass, as between the parties, by a, deed otherwise sufficient, even though not executed in such a manner as to entitle it to be recorded. In Quinney v. Denney, 18 Wis., 486, an objection was taken that an interest in land would not pass by a quit-claim deed which was not witnessed and acknowledged; but the objection was overruled. The question is not discussed at all, the case following that of Myrick v. McMillan. But the objection is now again raised, that, under this statute, a mortgage not witnessed was ineffectual to create a lien upon real estate; and we are referred to a number of decisions in support of the proposition. We have examined them, but they have failed to convince us that the construction heretofore placed upon the statute was erroneous. Some of these cases have arisen under statutes quite unlike, in some of their provisions, that of 1839 ; and of course the decisions made under them are inapplicable to the case at bar. This is true of the decisions in Ohio, and of the case of Merwin v. Camp, 3 Conn., 35. In the latter case there were negative words in the statute, which in effect declared [115] that no conveyance should be valid unless witnessed and executed as therein prescribed. In Allston v. Thompson, Cheves, 271, and Craig v. Pinson, id., 272, a deed without a subscribing witness, or with only one, was held not a valid deed to convey land; but it is said in the majority opinion that such an instrument had been held good as an agreement in writing to authorize equity to direct a specific performance, and it is a fair inference from the reasoning in that case that the court would have so decided had that question been presented. The case of Smith v. Chamberlain, 2 N. H., 440, is more in point, although the precise question whether it was essential to the validity of a deed to pass real estate that it should be witnessed, was not really presented in that case. There are no negative words in the statute of 1839 which declare that a conveyance, to pass title even as between the parties, must be witnessed and acknowledged; and therefore the objection to the mortgage before us really raises the question whether, by the principles of the common law, subscribing witnesses were essentially necessary to the validity of a deed. Upon that point the authorities are too emphatic and conclusive to admit of any serious discussion or reasonable doubt. In Dole v. Thurlow, 12 Met, 157-166, C. J. Shaw, in considering this question, says: “ The rule seems to be well settled by authority that an attesting witness is not necessary to a deed; ” and he cites numerous authorities in support of the remark. The same proposition is again affirmed by Bigelow, C. J., in Thatcher v. Phinney, 7 Allen, 146-149, in almost the same language used by chief justice Shaw. Prof. Washburn, in his work on Real Prop., Vol 3, marginal paging 572, 3 ed.. says that at common law attestation was not required in order to give validity to a deed. There is a very able and learned exposition of the law upon this subject by Judge Haywood, in Ingram v. Hall, 1 Hayw. Law and Eq. R., by Battle, 222, which shows most conclusively that at common law a deed was valid without at [116] testing witnesses. And this being tbe case, we are of tbe opinion that, under tbe statute of 1839 (§ 9, p, 179), it was in no wise essential to tbe validity of a conveyance as between tbe parties, that it should be attested; and that, consequently, tbe mortgage in tbe present case was effectual to create alien upon tbe mortgaged premises. This brings us to tbe question whether, upon tbe evidence, there is any reasonable ground for bolding that tbe defendant Jess wag an innocent purchaser of a portion of tbe mortgaged premises without notice of tbe existence of tbe mortgage. The circuit court held that he was a purchaser in good faith, without notice, actual or constructive, of the mortgage. In this conclusion we are unable to concur. As the mortgage had not been witnessed, the record thereof would not have been constructive notice to a subsequent purchaser. Ely v. Wilcox, 20 Wis., 523. But in this case Jess had actual notice of the existence of tbe mortgage before and at the time be purchased, as is conclusively shown by the testimony of the witness Barron, and by Jess’s own letter of September 15th, 1870, introduced on the trial. In this letter, when writing to Mr. Page about this mortgage, he says : “ Before I bought the farm I examined the title, and although there appears on record something purporting to be a mortgage, yet my counsel advised me that it was not even a cloud on the title, as it was not executed according to law, there being no witnesses to it.” And, as just observed, it appears from Barron’s testimony that Jess knew all about this mortgage before he purchased. This testimony is not in any way contradicted or impeached. Now it seems to us impossible to hold, upon such clear and uncontradicted testimony showing that Jess knew all about this mortgage before he purchased, that he was a purchaser in good faith, without notice, actual or constructive. We therefore must hold that he purchased subject to the mortgage. It follows from these views that the judgment of the circuit [117] court must be reversed, and tbe cause remanded witb directions that tbe circuit court enter a judgment of foreclosure according to tbe prayer of tbe complaint. By the Court.— So ordered.