Laurent v. Lanning

Mr. Justice Wouverton, after setting forth the facts, delivered the opinion of the court. It is somewhat difficult to determine just what was accomplished by the order of the court below respecting the demurrer. The further and separate defense does not tend to defeat plaintiffs’ cause of — 15 — suit, which is for the reformation and foreclosure of their mortgage. Their right to the remedy invoked exists in spite of anything that appears in such defense. It does, however, set up certain equities in James which have accrued by virtue of the recovery and docketing of the judgments whereby he acquired liens upon the same premises covered by plaintiffs’ mortgage, and its real purpose was to test the question of priority touching the liens of the respective parties. It is not susceptible of a broader interpretation, nor is it effective for any other purpose, if it suffices for that. In this view, the demurrer should have been flatly overruled. And such we believe to be the effect of the court’s order respecting the same, although it anticipates quite clearly the law touching the relative equities of the parties ultimately to be ascertained and determined upon the pleadings and evidence. It did not in the least abridge or circumscribe any of the defendant’s alleged rights, and the answer was as effective for the purpose for which it was interposed after it was made as before. So that the demurrer must be considered as having been overruled. This leaves the answer without a reply, and in this state of the pleadings the parties went to trial, and offered their proofs, which are now here for our consideration. To prove the execution of the mortgage, the plaintiffs called as a witness Alfred H. Freerkson, who was a subscribing witness thereto. He identified the signatures of the mortgagors, and thereupon the mortgage was offered in evidence, and — 16 — was objected to on the sole ground that it appeared to contain some erasures and interlineations not accounted for. A witness was then called to explain these, after which it was received by the court. There is at the foot of the mortgage a certificate of the acknowledgment of the makers over the hand and seal of Alfred H. Freerkson as notary public, and there is indorsed upon it a certificate of the recorder of conveyances for Linn County, showing the filing and recording thereof in the records of said county on July 1, 1893. It is claimed that the admission of the mortgage in evidence did not carry with it either the certificate of acknowledgment or the certificate of record, and that the court was without evidence from which it could legitimately find that the mortgage had been duly acknowledged and recorded at the dates shown by such certificates, and hence should have postponed plaintiffs’ mortgage to the superior equities of the defendant’s judgments. Plaintiffs’ allegation that Lanning and wife made, executed and delivered the mortgage is broad enough to include the signing, sealing, attestation, and acknowledgment. 5 American and English Encyclopedia of Law (1st Ed.), 439. Touching the proof of the acknowledgment, Mr. Devlin says this: “A deed that is properly acknowledged is entitled to admission in evidence without proof of the handwriting of the magistrate or officer taking the acknowledgment. The certificate of the officer is prima facia evidence of his authority to take the acknowledgment, and of the genuiness of his signature, subject to rebut — 17 — tal by evidence showing his want of authority, or the fact that the signature attached was not made by him.” 1 Devlin on Deeds, § 467. The offer of the mortgage with the certificate of acknowledgment appended thereto was, under these authorities, sufficient to carry the certificate with it. It was the executed — the completed — mortgage that was offered and received, and this included the certificate of acknowledgment. We are not so sure about the certificate of record, nor is it material in the present case. By the allegation of the complaint and proof under it the plaintiffs have a perfect mortgage, which is undoubtedly a lien upon the premises described therein; but the defendant James, by the uncontroverted allegations of his answer, has two judgments, which also constitute valid liens upon the same lands, and the question is which party is prior in right. In this connection, inquiry touch, ing the effect of defendant James’ uncontroverted averment that at the time of the rendition and enrollment of his judgments he had no notice or knowledge of plaintiffs’ mortgage is pertinent. Without the recording act, he who had a prior specific lien possessed a superior equity to one holding a subsequent general lien. But the statute has provided that a conveyance of real property, or any interest therein, shall be void as against the lien of a judgment unless such conveyance be recorded at the time of docketing such judgment, or unless it be recorded within the time after its execution provided by law as between conveyances for the same — 18 — real property: Hill’s Annotated Laws, § 71. It has become the settled construction of this statute that a judgment lien, in order to have precedence over a prior unrecorded d'eed or mortgage, must have been taken or acquired in good faith, without notice or knowledge of such prior unrecorded conveyance or mortgage, thus putting the judgment lien creditor upon the same footing as if he had subsequently acquired a deed to the same premises. Baker v. Woodward, 12 Or. 3(6 Pac. 173); Stannis v. Nicholson, 2 Or. 332 ; U. S. v. Griswold, 7 Sawy. 311, 332 (8 Fed. 556); Meier v. Kelly, 22 Or. 136 ( 29 Pac. 265); Rhodes v. McGarry, 19 Or. 222 (23 Pac. 971); Riddle v. Miller, 19 Or. 468 ( 23 Pac. 807). With this understanding of the statute, it is not sufficient that James had no notice or knowledge of plaintiffs’ prior mortgage, it must be of their prior unrecorded mortgage; and it was necessary, therefore, for him to show that plaintiffs’ mortgage was unrecorded at the time he in good faith acquired his judgment. That is to say, in order to advance his equity above that of the plaintiffs, he must show plaintiffs’ laches in not complying with the terms of the statute under which he claims superior right. And this imposes upon him the duty of showing the want of record. In order to show this, he should have alleged it, and the uncontroverted averment that he had no notice or knowledge of the mortgage was insufficient for the purpose. The evidence showing the mutual mistake of the parties touching the property intended to have — 19 — been included, and the proper description thereof, is quite sufficient, and the decree of the court will be affirmed. Affirmed.