Mutual Life Insurance v. Corey , 61 N.Y. Sup. Ct. 493 ( 1889 )

Merwin, J.

It is claimed by the appellants that the deed of November 15, 1873, was properly acknowledged, although before a notary public outside of his own county. The argument is that the general provision of the Revised Statutes, (1 Rev. St., 8th Ed., p. 379, § 14,) that notaries public may execute the duties of their office at any place within the state, applies to their power in taking acknowledgments of deeds. It was held to the contrary in Re Railroad Co. v. Stewart, 33 How. Pr. 312, and in People v. Insurance Co., 65 How. Pr. 239. By the Bevised Statutes it was provided that notaries public might be appointed in each of the counties of the state; that they should reside in the respective counties for which they should be appointed, and might execute the duties of their office at anyplace inthestate; and certain powers were given to them, (4 Rev. St. 2645,) which did not include the power to take affidavits or acknowledgment of deeds. By chapter 360 of 1859 it was provided that notaries public, “in addition to their present powers,” should have authority to-administer oaths and affirmations, and take the proof and acknowledgments of deeds and mortgages, “in all the cases where the same may now be taken and administered by commissioners of deeds, and under the same rules, regulations, and requirements prescribed to commissioners of deeds.” By chapter 508 of 1863 it was provided that “notaries public shall have all the powers now conferred upon them by law, and shall also have power to take affidavits, and certify to the same, and to take and certify the acknowledgments and proof of deeds and other instruments in writing, in all cases where justices of the peace or commissioners of deeds may now take and certify the same.” By chapter 703 of 1872, power was given to the notaries public of the counties of New York and Kings to act in either county. A similar right was given to any notary of several other counties, not including Schuyler, by chapter 807 of 1873, upon filing a certified copy of his appointment, with his autograph signature, in the clerk’s office of the counties other than where he resided. By chapter 270 of 1884, any notary is authorized to act in an adjoining county upon filing certain certificates in the clerk’s office of such county. It is thus quite apparent that the legislature have acted upon the supposition that the general power originally given to notaries did • not authorize them to exercise their subsequent powers in all parts of the state. Very clearly, it was the intention of the act of 1859 to confer no greater powers than commissioners of deeds then had, and such powers were then by law limited to the county of the appointment. Neither that act nor the one of 1863 conferred any general power, like the one conferred originally on notaries, but it was limited to the cases in which commissioners of deeds or justices of the peace could act.' It was not the general power to take affidavits and acknowledgments, but a power to take “in the cases” where the other officers could take. This, necessarily, had the same territorial limitation. We are therefore of the opinion that the notary of Schuyler county had no power to take the acknowledgment in Tompkins county. This is a question of jurisdiction. The certificate, though in form correct, may be rebutted. Thurman v. Cameron, 24 Wend. 87; Sandland v. Adams, 2 How. Pr. 127.

But it is suggested in behalf of the appellant that Mr. Osborn, the notary public, should be deemed a subscribing witness. He did not, however, sign as such. , His signature is only as notary, and- at the end of the certificate of acknowledgment. He did not subscribe his name to the deed as a witness of the sealing and delivery. In Hollenback v. Fleming, 6 Hill, 303, a subscribing witness is defined to be one who was present when the instrument was executed, and who at that time subscribed his name to it as a witness of the execution. A subscribing witness attests the delivery as well as the signing. In that respect, it goes further than the acknowledgment. We think the notary was not a subscribing witness. •

The plaintiff is in a position to dispute the validity of the deed in question. It is a purchaser or incumbrancer, within the meaning of the statute. 4 Bev. St. (8th Ed.) p. 2451, .§ 137.¹ Assuming the plaintiff’s mortgage was defectively acknowledged, it was valid in equity, (Payne v. Wilson, 74 N. Y. 348,) and upon the foreclosure sale the plaintiff became a purchaser entitled to the benefit of the statute. The matter of notice was not material. Chamberlain v. Spargur, 86 N. Y. 603.

After the judgment of May 21,1877, was set aside as to the present defendants, the deed of November 15, 1873, was a cloud on plaintiff’s title, and it could maintain an action to remove it. Paper Co. v. O’Dougherty, 81 N. Y. 474, 483. That judgment not having been set aside as to Hattie L. Corey, she was not a necessary party defendant. Her rights, if any, would not be affected.

The right of action of plaintiff is not barred by the statute of limitations. The action was commenc'd within 10 years from the giving of the mortgage. In Miner v. Beekman, 50 N. Y. 343, it was said that the owner of the fee had a right to bring an action to remove a cloud at anytime during its existence. The notary, Osborn, was called as a witness by plaintiff, and testified that the deed, was acknowledged at the house of the grantor. This was objected to, in time, as inadmissible, under section 835 of the Code.² Mr. Osborn was an attorney, and was employed by the grantor to draw the deed. It is claimed that the testimony objected to necessarily involved a communication made by his client to him in the course of his professional employment. The act of the attorney in drawing the deed is one thing; the act of the notary in taking the acknowledgment is another. Concededly, an acknowledgment was taken. The witness, in stating the place where it was taken, did not disclose any communication made to him in the course of his professional employment as an attorney.

The appellants claim the equities of the ease are with them. This is not made clear. The court below, upon sufficient evidence, found that the deed •of 1873 was without valuable consideration. The grantor, in 1877, obtained a judgment setting it aside. Before this judgment was set aside, and while "the title of William G-. Corey was apparently clear, and he was in possession, ¡the loan was made from plaintiff, and the mortgage given. The plaintiff, as far as the case shows, had no actual notice of any irregularity in the recovery •of the judgment. It is doubtful whether it had constructive notice, as the judgment was probably not void, but voidable. We are, however, not required to pass upon the respective equities. The imperfect deed had no effect as against plaintiff. It is not a question of rescinding an instrument, but of invalidity under the statute. There was no estoppel through its covenants •of warranty. Chamberlain v. Spargur, supra. It follows the judgment •must be affirmed, with costs. All concur.

1 This section provides that a deed not duly acknowledged, and not attested, “shall not take effect, as against a purchaser or incumbrancer, until, so acknowledged. ”

2 Code Civil Proc. N. Y. § 835, prohibits attorneys at law from disclosing professional communications as witnesses.