Edwards v. Thom , 25 Fla. 222 ( 1889 )

Raney, C. J.:

Selden purchased land situate in Alachua county from Acee, and in January, 1882, executed a mortgage to him on the same to secure a promissory note of S3,150, principal representing part of the purchase price of the land. This mortgage was duly recorded in the county records. On October 12, 1882, Selden mortgaged the laud to Edwards, and this mortgage was recorded on the 29th of the same month. In March, 1883, Selden executed a mortgage on the lands to appellee, and it was put upon record the same day. In April, 1884, Acee filed a bill against Selden and his wife to foreclose his mortgage and have a sale of the property to pay the indebtedness secured by it. Edwards knew of these foreclosure proceedings, but was not made a party to them. The appellee was, however, made a party thereto upon his own application, and filed an answer in which he admitted the allegations made in Acee’s bill, and consented to a decree being made as prayed b}r such bill,'and in his answer set forth Selden’s indebtedness and mortgage to him asked that the surplus proceeds of the sale should, after paying Acee’s claim, be applied to the payment of his own. A decree of foreclosure and sale was made in April, 1884, and the property was afterwards sold and appellee became the purchaser thereof and obtained a deed thereto, and the surplus proceeds, $4,293.70 were, pursuant to a provision in said decree, deposited with the Clerk of the Court to be held until the further order of the Court.

At this stage of the proceedings the appellee filed in April, 1884, his bill set out in the statement of the case.

The charges of appellee’s bill'that Edwards’ mortgage is not bona fide, nor based upon a valuable consideration, and that Edwards had, when he took his mortgage, notice of the loan of money made by appellee in 1882 to Selden on the promise of the security of a lien on the property and those as to fraud or collusion between Edwards and Selden are not sustained by the testimony. It is, however, clear from the evidence that the appellee is a mortgagee, for a valuable consideration, and that he took his mortgage without notice, either actual or constructive, of Edwards’ mortgage unless it be that the record of it made in the Clerk’s office of Alachua county was constructive notice.

No mortgage of real property is good or effectual in law or equityagainstcreditorsor subsequent purchasers for avaluableconsideration and without notice,unless it is recorded in theofficeassigned bylawfor that purpose. In order to procure •this recording, the execution of the mortgage by the party making the same must be acknowledged by such party, or it must be proved by at least one of the subscribing witnesses thereto before an officer authorized by law to take such acknowledgments or proof. Sec. 6, p. 215, McC.’s Dig. By,the section just cited, passed in 1828, this acknowledgment or proof had, when taken in the State, to be made before the officer authorized to record the mortgage, or before some judicial officer of the State, but in 1861 it was provided by the 4th section of Chapter 1127, approved Eeb. 8, that “ notaries public be and they are hereby authorized to solemnize the rites of matrimony, and if there be any doubt as to their being authorized by the laws of this State to take the renunciation and relinquishment of dower and the acknowledgment of deeds and other instruments of writing for record, be, and they are hereby fully authorized to do so as amply and as fully as Justices of the Peace and other officers of this State are, and for so doing they shall be allowed the same fees as are now allowed by law for other officers to do so.” This section appears as section 3, on page 792 of McC.’s Digest, some of its language having, however, been omitted by the author of that work. This legislation, by its terms, gives power to notaries public to take the acknowledgment of deeds and other instruments of writing for record, but we think that proof made by a subscribing witness of the execution of the instrument is as much within the meaning of the statute and the intention of the makers of it as is an acknowledgment by the maker of a mortgage or other instrument of his execution of it. In A.Einstein’s Sons vs. Shouse, 24 Fla., we held that the word “proving” in Sec. 1, p. 213, McC.’s Dig., as to the admission of chattel mortgages to record, included in its meaning an acknowledgment by the maker. A thing within the intention of the maker of a statute is as much within the statute as if it were within the letter. Riddick vs. Walsh, 15 Mo., 519. The point that a notary public had no authority to take the acknowledgment or proof of an instrument for record is not well taken.

The proof of -execution by Selden of the mortgage to Edwards is an affidavit made and subscribed by one J. R. Emerson before J. W. Smith, a Notary Public for the county of Alachua. Emerson’s and Smith’s names appear as the witnesses to the mortgage. Emerson’s affidavit, as certified by Smith, is that he, Emerson, saw Selden and his wife, naming them, “ sign the foregoing indenture and acknowledge that they did so for the purpose therein expressed, aud that he, together with J. W. Smith, signed the same as witnesses.”

As appears above, the requirement of the statute is that the execution of the mortgage shall be acknowledged or proved. The proof here is only of the signing. Passing without comment the silence of this proof on the subject of sealing, it is yet true that the delivery of a mortgage is an essential element of its execution. Where an instrument requires a seal the signing, sealing and delivery constitute its execution. There must be proof or acknowledgment as well of the delivery as of the signing, to entitle the instrument to record or to give its record the constructive notice which the statute attaches to a legal record. In Rushin vs. Shields & Ball, 11 Geo., 636, the proof upon which record of the deed had been made was that the subscribing witness saw the grantor “ sign and seal the deed for the purposes therein named, and that he also saw ” two other persons, naming them, “ as witnesses to the same.” The court held that delivery was essential to the true execution of a deed and thatit would seem therefore that proof of delivery was necessary before the deed could be legally recorded and the admission of the copy in evidence by the lower court was held to be error. The case of Dinkins vs. Moore, 17 Geo., 62, cited by counsel for appellant is not inconsistent with the one just mentioned. In this case the deed concluded: “ In testimony whereof I have hereunto set my hand and seal,” giving the date “ and delivered the property” to the grantee, naming him, “ by the symbolic tradition of a penknife.” The attestation is as follows: “In the presence of Theodore Guery, Thomas Bivens, J. P.” The statute authorized the admission of such instruments to record in either of two ways, viz.: by proof of its execution, or by the official attestation of a magistrate; and in this case it was done upon the attestation of the Justice of the Peace, Thomas Bivens. The court held that in the case of Rushin vs. Shields the inference from the omission of a statement in the proof, as to the fact of delivery, was that the subscribing witness who was not a magistrate did not see the deed delivered, but in this case where there was no form of words and the attestation was by a Magistrate, the conclusion of law was that the Magistrate performed the official duty prescribed for him and saw the instrument legally executed, i. e., signed, sealed and delivered.

As was held by us in Einstein’s Sons vs. Shouse, supra, and will beseeu from the authorities there cited, the ruléis that a substantial compliance with the requirements of the recording acts is sufficient. § 583 of Jones ou Mortgages. We can not, however, supply substantial defects by intendments or presumptions. Bryan vs. Ramerez, 8 Cal., 461; Hindes Lissus vs. Longworth, 11 Wh. 199; Fipps vs. McGehee, 5 Porter, 413; Stanton vs. Batton, 2 Con., 527. There is, moreover, in the body of this mortgage, no statement of delivery, even if the language of the certificate of proof was such as would connect itself with such statement, were it there, and cure what might otherwise be a fatal deficiency.

The certificate as to Mrs. Seldeu is that she acknowledged that “ she ioiued in the execution and delivery ” of the mortgage freely and without fear or constraint of her husband. Her acknowledgment does not do away with the necessity for an acknowledgment or proof as to execution by him, Sanders vs. Pepoon, 4 Fla., 465, nor does it supplement the defect in such proof in this case. The law has given it no such effect. She has no authority to represent him as in McCoy vs. Boley, 21 Fla., 803, where the acknowledgment of one partner was held to be sufficient-We are unable to conclude that the proof as to Selden’s execution of the deed was sufficient to entitle it to record. Being insufficient the record of the mortgage upon such insufficient proof is not constructive notice of its contents to a subsequent mortgagee. Rushin vs. Shields, supra; Bishop vs. Schnieder et al., 46 Mo., 472; Jones on Mortgages, §533; Lessees of Huster vs. Fortner, 2 Burney, 39; Paul vs. Shaubhut, 5 Minn., 323; Blood vs. Blood, 23 Pick., 80; 79 N. C., 235.

It is made clear by the pleadings and testimony that Edwards transferred the Coburn mortgage to Selden and the same was satisfied on the records of Alachua county. It was evidently Edwards’ intention to surrender this mortgage and rely upon the security of the one made by Selden to him.

As the appellee was a mortgagee for a valuable consideration and without notice, either actual or constructive, of Edwards’ mortgage we think he is entitled to priority as against Edwards’ mortgage, and that the decree of the Chancellor in giving him this status as to the excess of the purchase money paid for the land was correct. As Edwards was not a party to the Acee foreclosure proceedings we are at a loss to perceive that any harm would have been done Edwards if the Chancellor had awarded him such excess as against Acee’s representatives and theSeldens by an order in that suit. Edwards was not making any claim to them, nor had any foreclosure been sought against him.

There is one feature, however, of the decree which we think goes too far, considering the nature of this proceeding. The fifth paragraph decrees that the mortgage given by Selden and wife to Edwards is of no validity and void as against the rights and interests of the appellee in and to the property mortgaged and all the improvements thereon, and it directs the Clerk of Alachua County Circuit Court to cancel the same of record as prayed for in the complainant’s bill. The prayer of the bill on this subject is for a decree that the lien of the appellee’s mortgage upon the premises is subordinate only to Acee’s mortgage and is entitled to precedence over the pretended mortgage to Edwards, and that the last named instrument may be can-celled as to any lien it may be or may have been on said premises.

As stated at the outset of this opinion, there is a failure to prove that the Edwards mortgage is fraudulent. Its only deficiency is the illegality of the record on account of the deficient proof of execution. The Chancellor might have properly decreed that the record of the mortgage to Edwards was illegally made, and of no effect in law or equity and was not notice, either in law or equity, of the the existence of said mortgage, and that Thom took his mortgage for a valuable consideration and without notice of the mortgage to Edwards. This, with the previous provisions of the decree, would have been sufficient, and, in view of the failure of proof mentioned as to certain allegations of the bill, more accurate. As it stands, the decree,, when considered with reference to all the allegations of the bill, might be construed to adjudge the mortgage void because fraudulent and collusive and without consideration.

There is no necessity for the cancellation further than an entry may be made on the margin of the record of the mortgage of the eflectand date of the decree, if it is deemed; desirable.

Our conclusion is, that the 5th paragraph of the decree is erroneous and should be modified as indicated above, and that otherwise the decree, in so far as it is involved in this appeal, should be affirmed. Appellant and appellee Thom will each pay half of the costs of this appeal. It will be so-ordered.