Fogarty v. Sawyer

| Cal. | Jul 1, 1863

Cope, C. J.

delivered the opinion of the Court—Norton, J. and Crocker, J. concurring.

This is an action to recover a fifty-vara lot, in the City of San Francisco. The parties deraign title from the same source—the plaintiff under a conveyance executed in June, 1854, and the defendant under a sale made in October, 1852, in pursuance of a power contained in a mortgage. The validity of this power, and its effect as authority for the sale, were determined on a former appeal. (17 Cal. 589" court="Cal." date_filed="1861-07-01" href="https://app.midpage.ai/document/fogarty-v-sawyer-5434658?utm_source=webapp" opinion_id="5434658">17 Cal. 589.) The same questions are again presented, but we regard the former decision as conclusive. In addition to these, however, various questions are raised by the appellant, relating principally to the registration of the mortgage and certain alleged irregularities in the sale.

Instead of the original mortgage, the defendant read, in evidence, a certified copy from the records of the county, and it is objected that the certificate of acknowledgment was not sufficient to admit the mortgage to record. The point of the objection is, that it was given by a Notary Public under his private seal. It states, however, that the Notary had not obtained an official seal, and the statute then in force provided that, in such cases, a private seal might be used. (Stat. 1850, 114.) The objection is, therefore, covered by the statute, the effect of which was to give to the private seal of the Notary, when properly used in the business of his office, the force of an official seal. The point that the record of the mortgage was insufficient as a record of the power of sale, is not well taken. It is based upon the twelfth and thirteenth sections of the Act concerning County Recorders. The twelfth section provides, that it shall be the duty of the Recorders, upon the payment of their fees for the same, to record certain instruments, specifying in several subdivisions the instruments to be recorded. The first subdivision includes deeds, mortgages, powers of attorney to convey real estate, and leases. The thirteenth section provides, that “ the several classes of instruments, mentioned in the several subdivisions of the preceding section, shall be recorded in separate books.” It is claimed that mortgages and powers of attorney belong to separate and distinct classes; and that a mortgage containing a power of sale must be recorded not only as a mortgage, but as a power of attorney. This, we think, is not the proper construction of the statute. We regard the classes as indicated by the subdivisions, each subdivision constituting a class. Of course, the instruments,named in a particular subdivision may be recorded in separate books; but a separate record is not' essential, either as notice or for purposes of evidence. It is admitted that the instrument in this case, considered as a mortgage, was recorded in the proper book; and, so far as the question of notice is concerned, the record was undoubtedly notice of what the instrument contained. Whether the record of a deed, executed in pursuance of an unrecorded power, will impart notice, it is not material to decide.

In respect to the sale, it is objected that there was no publication of notice, and that it was not conducted by the attorney named in the power. There is nothing in either of these objections. By the terms of the instrument, no publication was required; but if one were necessary, the evidence shows that it was made. The proof is not very definite; but considering the time that has elapsed, we regard it as sufficient. The sale was made under the direction of the mortgagee, who was the person empowered to make it. The fact that he employed the services of an auctioneer is no ground for saying that the sale was not conducted by himself. It appears that he was absent when the sale was made, but this alone is not sufficient to defeat the title.

Some additional points are taken, but we regard them as untenable.

The judgment is affirmed.