Steers v. Kinsey , 68 Ark. 360 ( 1900 )

Riddick, J.,

(after stating the facts.) This is a controversy concerning the title to certain lots and tracts of land formerly owned by the Kentucky & Arkansas Land & Industrial Company. The company mortgaged the lands, and, failing to pay its debt thus secured, the lands were sold under the power contained in the mortgage, and purchased by one Bergholz. He in turn sold to the Arkansas City Improvement Company, one of the parties to this action. It is admitted that this mortgage, upon which the claim of the Arkansas City Improvement Company to these lands is based, was executed and recorded before the commencement of either of the attachment suits upon which, and the judgments and orders rendered therein, the other claimants rest their several claims to the ownership of the land. If the lien given by this mortgage upon the land was superior to that acquired by the attachment suits, then the title of the party holding under the mortgage sale is [superior to that acquired by those purchasing under sales had in the attachment proceedings.

It is not claimed that there was any defect in the execution of the mortgage itself, but it is asserted that it was never acknowledged as required by statute, and that for this reason, under our law, it was not a lien upon the land as against the attaching creditors. Counsel for Steers contend that the certificate of the notary public attached to the mortgage shows that there was in fact no acknowledgment to the mortgage, but only an affidavit, and that for this reason the statute curing defective acknowledgments does not apply. Now, the acknowledgment of a deed is a declaration or admission made by the party executing the deed to a public officer having authority to take such acknowledgments that it is his deed and executed by him. Bouvier’s Law Diet. (Rawle’s Ed.) Our statute prescribes a particular form, with which a substantial compliance is necessary. The certificate of the notary attached to the mortgage shows that the statute was not followed, but still we think that this certificate shows an acknowledgment, though a defective one. A corporation acts by its agents, and the deed in this case was executed by the president of the corporation, and attested by the secretary. The certificate of the notary public shows that the president appeared before him, and stated under oath that the seal of the corporation had been affixed to the deed by virtue of a resolution of the board of directors, and that he and the secretary had each signed the deed by virtue of such resolution. This was in effect an acknowledgment that he had executed the deed, and the fact that this declaration or admission was made under oath cannot change its nature. Chouteau v. Allen, 70 Mo. 290.

While the acknowledgment was defective, it was cured by the act of March 11, 1891, curing defective acknowledgments. The statute in question provides that it shall not apply “to any conveyance or other instrument in writing when the same is brought in question in any suit now pending in any court in this state.” The attachment suits brought by Steers & Co. and by Kinsey were pending at that time, but we are unable to agree with the contention that these suits brought in question the mortgage under which the Arkansas City Improvement Company claims the land; for, whether the mortgage was good or bad, the lands were subject to attachment. The fact that one mortgages his land to secure the claim of a creditor does not prevent his other creditors from levying an attachment upon the land, though, if the mortgage be valid, and has been properly recorded prior to the attachment suits, the attachment lien will be subject to the mortgage. In such an action the mortgagee is not required to be made a party. The recovery of judgment and sale of the land in the attachment suit does not affect his rights, the validity of his mortgage not being questioned by such action. The lien or title acquired by the attaching creditor may furnish a basis for another suit or proceeding by which the validity of the mortgage may be questioned, but the action of attachment itself does not question it, for the right to maintain such action does not depend upon the invalidity of the mortgage. After the land had been sold in the attachment proceeding, the purchasers thereof, or those holding under them, brought this action, which does question the validity of the mortgage given by the Kentucky & Arkansas Land & Industrial Company; but these actions were commenced after the passage of the statute referred to above. And if the statute made the mortgage valid as to the attaching creditors, the rights of those holding under the mortgage could not be affected by the present suit. The statute cured defects in the acknowledgment to the mortgage, and gave it, except as to persons having acquired vested rights in the land before the passage of the acts, the same force and effect it would have had, had it been properly acknowledged in the first instance.

.The only question that remains, then, is whether the parties who brought the attachment suits acquired vested rights in the land by the bringing of the suits and the levy upon the lands. Now, a vested right “must be something more than a mere expectation based upon the anticipated continuance of existing laws. It must have become a title, legal or equitable, to the present or future enjoyment of property,” in some way or another.' Black, Const. Law, 430; Sutherland, Stat. Const. § 164. But parties have no vested rights in remedies or matters of procedure, and we see nothing in these attachment proceedings that constituted a vested right on the part of the plaintiffs therein to the property attached. The attachments were levied upon the land after the mortgage under which the Arkansas City Improvement Company holds had been executed and recorded, and we think that it was within the power of the legislature to give to such mortgage the effect intended by the parties thereto, by curing the formal defect in the acknowledgment. Rosenthal v. Wehe, 58 Wis. 621; 6 Am. & Eng. Enc. Law (2d Ed.) 947; Stephenson v. Doe, 8 Blackford, 508, S. C. 46 Am. Dec. 489; Butler v. Palmer, 1 Hill (N. Y.) 324.

We are therefore of the opinion that the mortgage under which the improvement company claims the land was, after the passage of the act of 1891, superior to the liens acquired by the attachments. The attachments were subject to the mortgage, and the title acquired by the improvement company under the mortgage sale to the lands conveyed by the mortgage is superior to that acquired by those who purchased these same lands at the sale ordered to satisfy the judgments obtained in the attachment suits.

It is stated in the argument of counsel for Kinsey that certain of the lands attached and purchased by Post & Co., and which are now claimed by Kinsey, were not included in the mortgage above referred to. As to such lands, and as to the lien declared in favor of Steers & Company for sums expended in paying taxes upon the lands and redeeming them from tax sales, the judgment of the chancellor is affirmed, but as to the title of the lands described in the mortgage, the decree is reversed, and the cause remanded, with an order to enter a decree in favor of the Arkansas City Impi-ovement Company, as suggested in this opinion.