Stewart v. Dampman

Opinion by

Beaver, J.,

A bill in equity was filed in the court below by the appellant, a mortgagee, in accordance with the provisions of the Act of May 25, 1878, P. L. 149, praying for a decree for the reforming of a certificate of acknowledgment to a mortgage defective in form but which it was alleged was in fact really properly acknowledged in due form of law by the mortgagors. If the bill had included as defendants none but the mortgagors, and no intervening rights had accrued, and if the facts alleged in the petition had been properly proved, the plaintiff would have been entitled to a decree in accordance with her prayer. One, Manifold, a purchaser at sheriff’s sale under a subsequent mortgage, was, however, included as a defendant, who demurred to the bill “ on the ground that neither the mortgage nor the record thereof ever had any validity as against an innocent intervening third party or one claiming under him; that the certificate could not be reformed so as to affect his rights; that notice to him at the time of the sale (which was alleged in the bill) of the Stewart mortgage invalid on its face could not affect him, and that the plaintiff had been guilty of laches.” After careful consideration, in a thoughtful and well considered opinion, the court entered judgment upon the demurrer in favor of the defendant. ' Before considering the single question involved in the case, it may be well to remark that the act of 1878, supra, is not in any sense mandatory. It simply gives power or makes it lawful for the courts to do that which in the contemplation of the act itself it was right to do.

If the premises upon which the appellant bases his argument were sound, his conclusion would be irresistible, but they are not sound. The mortgage of the Dampmans to Mrs. Stewart was not a recordable- instrument, even as to the husband. The .acknowledgment was not a compliance with the provisions of 'the act of February 24, 1770, and the instrument was, therefore, .a nullity.- This abundantly appears from many adjudicated -cases: Spencer v. Reese et Ux., 165 Pa. 158, and the authorities 'there cited. At the time when the mortgage of Dampman et Ux. to Mrs. Irvin was recorded, their property was unincumbered, at least so far as third parties and their relation to the mortgage to Mrs. Stewart was concerned. But it is alleged in the bill and is, of course, to be taken "as true that Manifold had actual notice of the existence of Mrs. Stewart’s mortgage at the time of the sale. What was the effect of that notice ? Simply to compel him to make inquiry. It drove him to the records ; nothing more. It could give no validity to what was upon its face invalid. It could give no life to that which never had existence. It created no lien, when upon the face of the records none confronted him: Bolton v. Johns, 5 Pa. 145.

It is claimed by the appellant, however, that by the Act of May 12, 1891, P. L. 53, the acknowledgment is validated and the mortgage good as against Manifold. If this were so, it would not be necessary to resort to a bill in equity under the provisions of the act of 1878, supra; but it is not so. The act of 1891, supra, although probably passed to meet the requirements of a particular case, is general in its -terms, and is to be given full force and effect. It was evidently intended to apply to cases where purchasers for a valuable consideration were claiming by virtue of a deed or other instrument defectively acknowledged. It certainly was not intended and cannot be held to apply to third parties claiming against the validity of such a deed whose rights were acquired prior to the passage of the act. It is claimed that Journeay v. Gibson, 56 Pa. 57, goes to this extent. We must hold that Journeay v. Gibson is law according to’ its facts, and have no difficulty in doing so, although heartily joining Mr. Justice Stbong- who wrote the opinion, in his disapproval of such legislation, and his remark as to the injustice of its retrospective character. Its facts are, however, entirely different from those of this case. On the 14th of June 1853, Eno executed a mortgage to Gibson to secure a bond for $1,200 which on the same day was acknowledged before James A. North, a justice of the peace of Genesee county in the state of New York. It was recorded on the 4th of April, 1854, in Crawford county, Pennsylvania, where the land covered by the mortgage lay. Eno conveyed the same land on the 3d of May, 1854, to George B. Webb. On the 5th of May, 1854, an act of assembly was passed intended to make valid and effectual in law, instruments acknowledged before officers of'other states, who by the laws of those states had authority to take acknowledgments, although prior to that time such acknowledgments were not valid in Pennsylvania. Subsequently to the passage of this act Webb conveyed this land, and on the 22d of December of the same year, Keyes, who had acquired the title, mortgaged the land to A. Journeay & Co. Under proceedings on this mortgage the land was sold by the sheriff and conveyed to Journeay, September 3,1860. All that was decided in this case was that Journeay, at the-time he took the mortgage, was bound to take notice of' the provisions of the act of the 5th of May, 1854, which validated an acknowledgment before that time invalid. If the case had been one as to the rights of Webb who took the conveyance from Eno before the passage of the act, a very different question would have been presented, and one which as to its facts would have been more nearly similar to the present. The opinion of the court below fully covers the points involved in the case, and we have only elaborated one or two of them, because of the ingenious argument of the appellant’s counsel, both in his paper-book and orally before this court.

For the reasons herein given, as well as those contained in the opinion of the court below, the decree is affirmed and the appeal dismissed at the costs of the appellant.