13 Iowa 455 | Iowa | 1862
Whether the deed of trust was so defectively acknowledged as that the recording of the same wou-ld not impart constructive notice of its contents to the subsequent mortgagees, we need not determine, as an examination of the testimony satisfies us that complainants had actual notice of said trust deed. And in arriving at this conclusion, we have not considered the testimony of Tod-hunter, who took the acknowledgment. He is a party to the record, and his testimony was properly excluded by the court below. Aside from this testimony, however, we are satisfied that complainants knew, at the time they took their mortgage, of the existence of the “prior deed, and that their lien was subject to that of respondents. And this knowledge carried with it the further fact that there was a mistake in the first conveyance. That there was a mistake, is indis
The mortgagees having actual notice, therefore, of the deed and of the mistake, the sufficiency of the acknowledgment is not material. The deed was good as between the parties, and all persons having actual knowledge of its existence, without any acknowledgment. Miller v. Chittenden et al., 2 Iowa, 315; Blain v. Stewart, Id., 378; Bell & Co. v. Thomas, Id., 384; Dussaume v. Barnett, 5 Id., 95.
"We are then next to inquire as to the amount of interest acquired by respondents by the trust deed. It will be remembered that Seachrest did not sign, nor acknowledge the deed. He was absent at the time, and there is no testimony whatever that he gave authority in writing or otherwise to his co-partner to make the conveyance. It is claimed, however, that upon his return he ratified the act, and that this was effectual to pass his title. The ratification, if any, was verbal, and not in writing.
The doctrine of the English courts is, that a sealed instrument, when made by one partner for the others, can only be made valid by a prior authority or subsequent ratification, evidenced by writing, under seal. This rule, however, is not followed in this country, it being well settled by the current of decisions, thafr a prior authority or subsequent ratification, express or implied, verbal or written, is sufficient to make the deed binding upon the firm. (Story on Part., § 122, and note 2.)
Another point in this case is made upon the following facts: The mortgage to complainants was to secure two notes. One of these was assigned to Brown & Co. They commenced an action at law on this note, and attached personal property sufficient to satisfy the same. The property was released by giving a delivery bond, and a judgment was recovered on the note. Brown & Co. were not made parties to this proceeding. The decree in this case finds in favor of complainants for the whole amount of both notes, and directs the mortgaged premises to be sold to satisfy the same. The mortgagees insist that this was error, and that there should have been no recovery beyond the amount due on the note still held by complainants. And this position we think is correct.
Our conclusion, then, is, that complainants* were entitled to a foreclosure for the note still held by them. That the deed of trust held by the creditors, Stadler, Bros. & Co. and Lauer Bros., is entitled to priority of lien upon the interest of C. M. Meek in all the lands, and that the prayer of the cross-bill, (or the answer which is made such,) to correct the mistake to this extent, should be granted, and that the mortgage of complainants, to the amount of the debt still due them, should have priority, as to the interest of all the other mortgagors beside the said O. M. Meek.
The decree will bo thus modified, in this court, or remanded for that purpose, as complainants may prefer, at their costs.