Parret v. Shaubhut

By the Court ElaNdbau, J. On the 8th day of June, 1858, Parret and wife executed a moi’tgage upon the land in question to Charles Thompson, to secure the sum of one thousand dollars, payable in one year, which mortgage was properly recorded. On the 14th day of May, 1859, PaiTet and wife executed another mortgage upon the same premises to John J. and Henry Shaubhut, to secure the sum of four hundred and foi'ty-nine dollars and sixty-nine cents, payable in two months; which mortgage was properly executed and delivered, but in the recording of the same the Begister of Deeds omitted one of the attesting witnesses, and the same appeared upon record to have been executed in the presence of but one witness. On the 15th day of July, 1859, Thompson voluntarily cancelled his mortgage of June 8, 1858, and took a new one for a greater amount, with interest at three per cent, per month. The considei’ation for the second mortgage taken by — 329 — Thompson was the first debt of one thousand dollars, with accumulated interest. This mortgage was duly recorded on the 16th day of July, 1859. At the time Thompson toot this second mortgage he had no notice of the existence of the Shaubhut’s mortgage, except such as was conveyed to him constructively by the records. The contest is for priority of lien between the mortgage of the Shaubhuts and the second mortgage of Thompson. On the trial below, before the Court, without a jury, several questions were raised by the Defendant Thompson. Ho claimed to have acted, in cancelling his mortgage, in ignorance of the fact that another mortgage had intervened in favor of third parties; and also, that he was induced by fraud to cancel his first mortgage. Both of these points were found against him by the Court, and we think correctly, upon the theory which obtained with the Court in the decision of the case. If the Sliaubliut mortgage was well recorded, Thompson could not successfully allege ignorance of its existence. The equitable doctrine that a party may have relief from his acts when done under an ignorance of facts, has no application to questions of this character, at least when the rights of third parties would be affected, but obtains in cases of sales of property, where some fact known to the vendor and unknown to the vendee, which would materially influence the sale, is suppressed-7-as if a man should sell a house, situated in a distant town, which he knew at the time to be burned down, and of which fact the vendee was ignorant — the vendee, in such case would be entitled to a redhibition of the contract. In such cases the fact suppressed must be peculiarly within the knowledge of one party and impose upon him an obligation in good conscience to disclose it, and not within the knowledge of the other, who must also be free from any obligation or duty to discover it. 1 Story’s Eg., see-iions 208 to 217. This case does not present a question involving this doctrine. The ignorance of the Defendant, Thompson, as to the mortgage of the Shaubhuts must be decided upon the registry acts alone. The claim that Thompson was induced to cancel his first moi’tgage by fraud is not sustained by the proof, and the — 330 — Court was clearly right in finding both these points against him. The real question in the case is whether the record of the Shaubhut mortgage was notice for any purpose. The Statutes of this State concerning the execution of conyeyahces of real estate, require that they “shall be executed in the presence of two witnesses who shall subscribe their names to the same as such.” Comp. Stat.page 398, see. 8. To make a deed of any interest in real estate good as against subsequent purchasers, in good faith and for a valuable consideration, of the same real estate, the deed must be recorded. Comp. Stat. page 404, see. 54. To entitle a deed to record, it must be executed, and acknowledged by the party executing the same as required by law, 'Id. page 404, see. 57, and there is the further provision on page 405, see. GU, making it a misdemeanor for any Register of Deeds to record “any conveyance, mortgage, or other instrument, by which any interest in real estate is or may be in any way affected, unless the same shall have been duly signed and executed^and acknowledged according to law.” It is competent for the government to prescribe rules for the conveyance of lands within its jurisdiction, whether by deed, will or otherwise, and it can impose such restrictions as are deemed for the best interests of its subjects. It may provide that the title to lands shall not pass unless the deed or will is upon paper, stamped by the State. It may declare that the instrument shall be attested by one, two or more witnesses; and none of these requirements involve a greater exercise of authority than to say that the conveyance shall be in writing, as there is no reason except the Statutes why a man should not pass his real as well as his personal estate by parol merely. That statutes requiring certain solemnities to attend the execution of conveyances are imperative, and must be complied with, to give validity to them, is illustrated by the action of Courts in annulling wills and conveyances of land frequently for the want of a seal or other essential formality. That our Legislature has always considered a departure from the Statute forms, as invalidating conveyances, is found in — 331 — tbe fact that a series of acts have been passed year after year, .to save such as are defectively executed, while the same Legislatures have steadily adhered to’the forms first prescribed, and even added greater restrictions. Act of March 4, 1854, Comp. Stat. 402; Act of Feb. 6, 1856, Comp. Stat. 406; Act of July 26, 1858, Comp. Stat. 403-4; Act Aug. 3, 1858, Comp. Stat. 404-5. When a party desires to purchase or take an incumbrance upon land, his guide as to the title is the records of the county, and it is a well settled rule that the record of a deed is notice only of its contents so far as the record discloses it. If the record contain any instrument which is not authorized to bo recorded, either from the nature of its subject matter or a defect in its execution, it is a mere nullity and is not notice for any purpose. In 1 Story's Equity, Jurisprudence, secUon 404, this language is used in treating of the constructive notice conveyed by records. “But this doctrine, as to the registration of deeds being constructive notice to all subsequent purchasers, is not to be understood, of all deeds and conveyances which may be defacto registered, but of such only as are authorized and required by law to be registered, and are duly registered in compliance with law. If they are not authorized or required to be registered, or the registry itself is not in compliance with the law, the act of registration is treated as a mere nullity; and then the subsequent purchaser is affected only by such actual notice as would amount to a fraud.” In Frost against Beekman, 1 John Ch. R. page 300, Chancellor Kent says upon the same subject: “The better opinion in the'books seems to be, that it would not be notice, and that equity will not interfere in favor of an incumbrancer who has not seen that his mortgage was duly registered.” James vs. Morey, 2 Cow. 247; 2 Hilliard on Real Property, 454, sec. 43. “In general, the recording of a mortgage is notice both of the debt and the lien to all parties. But without legal acknowledgment or proof, it is a nullity.” 1 Hilliard on Mortgages, 668 sec. 6. Chancellor Kent says: “In several of the States” naming them, “two witnesses are required to the execution of the deed; and probably the deed would not be deemed — 332 — sufficiently authenticated for recording withorit the signature of the two witnesses.” 4 Kent’s Com. 504. The Judge who tried the cause below, in speaking of this branch of the case, says: “The attestation forms no part of the deed, and the notice of record would have been as valid to all intents and purposes if it had presented no attesting witness at all, as it would had it been attested by two witnesses as is usually the case.” In this view the Judge clearly erred, and it is difficult to see by what means he could have arrived at such a conclusion. The Statute is imperative that “the deed shall he executed in the presence of two witnesses, who shall subscribe their names to the same as such,” and the Register is expressly forbidden to record “any conveyance, mortgage, or other instrument,” &c., “unless the same shall have been duly signed and executed, and acknowledged according to law.” If there is no necessity for witnesses there can be none for the acknowledgment, or the signature, and the Statute is ignored or repealed. The Court not having cited any authorities in support of his position in this respect, we tbink he must have overlooked these statutory requirements. The intention of the Legislature in regard to the necessity of having two witnesses to a deed or mortgage is much strengthened by the succeeding chapter of the old ^Revised Statutes in which the provision is found, which is published on pages 405-6 of the compiled Statutes and which was passed at the same session of the Legislature. In providing for the registration of bonds, contracts or agreements concerning any interest in lands, it exjDressly declares that one attesting witness shall be sufficient to entitle them to record, proving that greater solemnity was required in the execution of instruments conveying an estate in lands, than such as merely agreed to do so. We think the record of the Shaubhut mortgage was no notice to any one, and that the mortgage of Thompson subsequently executed and recorded, is entitled to priority over it; no actual notice having been conveyed to Thompson of its existence. The judgment of the Court below is reversed, and the case remanded with directions that a judgment be entered — 333 — in that Court which will fully secure the rights of said Thompson under his mortgage of July 15th, 1859, as first incum-brancer of the premises, and the rights of the Plaintiff as second incumbrancer thereof; and that the premises be sold to pay off said incumbrances in their order, with the usual decree in such cases.