Wells v. Atkinson

Cornell, J. 1. On a sale of real property, under a power of sale in a mortgage, tbe officer making it is required to give to the purchaser a certificate “containing,” among other things, the “date of the sale,” and “the time allowed by law for redemption.” Gen. St. c. 81, tit. 1, § 11. Instead of this, the certificate in the case before us contains the statement that “the above described premises are subject to redemption within the time and according to the statute in such case made and provided.” Though the statute in this regard be anything more than directory, it can hardly be supposed that the legislature intended to impose upon an officer the duty of ascertaining in advance how many persons might become redemption creditors, by filing the requisite notice of intention to redeem within the year next after the sale, as would be necessary in order to give the exact time when, in the particular case, the period of redemption would expire, and the title under the sale become absolute; or to make an accurate performance of this duty, and a correct statement of the result in the certificate, a requisite essential to its validity. The only conceivable reasonable purpose of this provision of the statute, taken in connection with the other facts required to be stated in such certificate, is to enable a party, from its inspection, to determine the character of the sale evidenced by it, and to ascertain when and upon what terms it will become operative as an absolute conveyance. In this case the date of the sale and all the other facts which such ..certificate is required to contain are correctly given. The fact that the sale was one under a power of sale contained in a mortgage therein described and subject to redemption is disclosed, and it is further stated that such redemption must be made within the time and according to the statute in such case made and provided. Every one is presumed to know the statute; and, as that is definite and certain which can be made so, the statement in the certificate must be deemed a [165] substantial compliance with the statute in this regard, and sufficient. 2. It is objected to the record of the deed from Bartholf to respondent, which purports to have been executed and acknowledged before one Wm. F. McLoud, as justice of the peace, in the state of Oregon, in May, 1876, that the authentication of the certificate of acknowledgment by the clerk of the court was insufficient to authorize such record, in this: that the clerk does not certify that he knows the signature of the justice, nor does he certify to the genuineness of it to such acknowledgment, or his belief therein, but merely that “the signature attached to the annexed instrument is genuine,” without specifying what instrument or signature is referred to. The statute, in force at the time, required the certifying officer to certify “that the person whose name is subscribed to the certificate of acknowledgment was, at the date thereof, such officer as he is therein represented to be; that he is acquainted with the handwriting of such person, and that he verily believes the signature subscribed to the certificate of acknowledgment to be genuine.” Gen. St. c. 40, § 9, as amended by Gen. Laws 1868, c. 61. A liberal rule of construction prevails as to statutes of this character, and certificates given under them, both of acknowledgment and authentication, and in ascertaining their meaning resort may be had to the whole deed or instrument to which they are appended or refer. “It is the policy of the law,” as clearly manifested in this state by repeated and almost annual curative acts upon the subject, “to uphold certificates of this character whenever substance is found, and not to suffer cognizance or proof of them to be defeated by technical or unsubstantial objections.” Hence, obvious clerical errors, whether arising from ignorance or inadvertence, misnomers of the instrument certified to, and all purely technical omissions and defects, are to be disregarded. As said by the court in Hcmrington v. Fish, infra, “the certificate of authentication is no part of the conveyance, and not the act of either party to it, but only evidence in regard to its execution and acknowl [166] iedgment, and, like all other evidence, should be reasonably .considered and construed.” Ives v. Kimball, 1 Mich. 316; Harrington v. Fish, 10 Mich. 415; Carpenter v. Dexter, 8 Wall. 513; McClure v. McClung, 53 Mo. 173; Hill v. Gettings, 2 Har. & J. (Md.) 380; Calumet, etc., Co. v. Russell, 68 Ill. 426. The deed in this ease, or a copy of it, is not before us. It is not claimed by counsel that the name of the justice subscribed to the certificate of acknowledgement appears either in or appended to the deed as a party, witness, or otherwise, or that it appears subscribed to anything except the certificate of acknowledgment; and from the findings of the court such must be assumed to be the fact. The reference, then, in the certificate of authentication to “the annexed deed, ” to which the name of Wm. F. McLoud was subscribed, as is certified, was obviously a misnomer for the certificate of acknowledgment, and it is equally manifest that reference was had to the same certificate of acknowledgment by the concluding clause, “I do further certify that the signature attached to the annexed instrument is genuine. ” In making this certificate the clerk was engaged in performing the duty of authenticating the official act of the magistrate in taking the acknowledgment, and the genuineness of his signature thereto, and it is not to be presumed that he failed in the performance of this dutybyom.iting to certify to the genuineness of such signature, and instead certified to some other instrument. The unqualified and positive affirmation that the magistrate’s signature to the certificate of acknowledgment is genuine, necessarily implies, on the part of the clerk, both a knowledge of the handwriting in this particular case, and his belief in its genuineness. The object of the statute was attained, and the decision of the court below upon this point was correct. 3. It appears, from the findings, that the possession of the premises was wrongfully withheld from the plaintiff by both defendants. As both participated in the wrongful act, both were liable, and the fact that one was acting as an agent for the other afforded no protection. Judgment affirmed.