Colby v. McOmber

Mar 17, 1887
Reporters:
,
Before:
Rothrock
Rothrock, J.

I. The petition is in the usual form. It is based, upon certain promissory notes made by the defendí ant McOmber to one McAndrews, and a mortgage upon certain real estate, executed by McOmber and wife, to secure the payment of the notes. It also sets forth an assignment of the mortgage by McAndrews to the plaintiff. McOmber and wife were made defendants, and a judgment on the notes and decree of foreclosure were demanded against them. II. O. Stanton, Bowles & Newcomb and Warren Walker -were, also made defendants upon the ground, as stated in the peti. tion, that they had or claimed some interest in the mortgaged. j>roperty, and it was averred that whatever lien or interest they had was junior and inferior to the mortgage. None of the defendants made any appearance to the action, excepting Warren Walker. A default was entered against all of the defendants who failed to appear, and a judgment and decree of foreclosure were entered against them. Walker filed an answer, in which he claimed a lien on the mortgaged property by virtue of a judgment against McOmber and his wife, rendered on the twenty-fifth day of September, 1884. lie also averred that the plaintiff was not the real party in interest, because McOmber and wife had conveyed the mortgaged property to McAndrews, and that he was therefore the proper party plaintiff. He also averred that his judgment lien was superior to the lien of the mortgage.

The mortgage was recorded some time before the judgment *471was rendered; and the answer, which is denominated a counterclaim, does not state why the judgment should be the superior lien, unless the pleader meant it to be understood that the mortgage was extinguished because the mortgagor had conveyed the land’ to the original mortgagee. This, however, does not appear to have been claimed on the trial, and, of course, it could not be so claimed, because the mortgagee would have the right to use the mortgage as a protection against subsequent liens, even,if the land was conveyed to him.

1. Acknowledgment: certificate: title of officer. The plaintiff offered the mortgage and assignment thereof as evidence. Walker objected because the instruments were “rr— ---------------- a notary public of O’Brien county. They not properly acknowledged. The acknowledgments appear to have been taken before Frank are signed “Frank Patch, Notary Public.” Appellant contends that the acknowledgments are defective because the notary did not write the words, “for O’Brien county,” after his name. This was not necessary. The body of the certificates recite in plain and unmistakable language that Frank Patch was a notary public in and for O’Brien county, and this was sufficient. Section.1938 of the Code requires that the certificate of acknowledgment shall set forth the title of the court or person before whom the acknowledgment was taken. The proper place to make the recital is in the body of the certificate, and the law does not require a repetition of it after the signature. The decisions of this court cited by appellant are not inconsistent with this ruling. This is so apparent that we cannot take .the time to cite them and comment upon them. If they did so hold, they would be in plain conflict with the statute above cited.

2. Pleading: issue without reply. II. It is claimed that the counter-claim should have been regarded as admitted, because the plaintiff .did not reply thereto. No reply was necessary. The plaintiff had already set forth in the petition that the mortgage was the superior lien, and the defendant set forth *472in general terms that the judgment was a lien prior to the mortgage. This made an issue between the parties.

3. Mortgage: foreclosure by pledgee before his claim is due: objection by junior lien-holder. III. The assignment of the mortgage was made as collateral security for a note of $600. The mortgage secured about $1,300. Appellant insists that, as the note for $600 is not yet due, the plaintiff could not . , . ,, ,. , . , ,. . . maintain the action, and m any event the inda:- , , , , , J J & ment should not have been rendered for more than the $600 and interest. It may be that, if the makers of the mortgage had defended the action, they would have had .the right to raise these questions. But the appellant is in no position to defend for them. Besides, the mortgage was due, and the assignment authorized the plaintiff to collect it. The rights of priority claimed by appellant do not depend on the fact that the note held by plaintiff upon McAndrew‘s is not due.

4. -: foreclosure: priority: evidence. • IY. There are other questions urged by appellant, which we do not think it necessary to discuss. They appear to be founded on the idea that the decree is against ^e evidence. The sum of the whole matter is that the records show that the appellant’s judgment is junior to the mortgage. It was incumbent on him to show that, notwithstanding this fact, he was entitled to the superior equity. The plaintiff might well stand upon the mortgage and its assignment, because appellant offered no evidence that invalidated them in any way. It is true, it appears that the mortgagors had made a quitclaim deed of the mortgaged property to McAndrews, and perhaps it would have been wise for the plaintiff to have made him a party defendant, and foreclosed whatever right he had. But we need not determine whether or not he was a necessary party. Appellant has had his judgment lien adjudicated, and he ought to be content.

Affirmed.