72 Miss. 228 | Miss. | 1894
delivered the opinion of the court.
The appellant, claiming to be substituted trustee under the' provisions of a deed of trust, to secure the payment of a certain note, executed by the .appellees on January 30, 1891, to W. E. Traylor, as trustee, instituted this action of replevin for the recovery of the personal property conveyed by said deed.
On the trial of the cause the plaintiff offered in evidence the deed, which was objected to on the ground that it had been acknowledged before the trustee, W. E. Traylor, which acknowledgment was, because of the incapacity of said trustee to take and certify the same, not competent evidence of its execution,
The deed of trust was properly excluded when offered in evidence. The effect of an acknowledgment is to entitle the instrument to recordation, and also to dispense with other proof of its execution. In Wasson v. Connor, 54 Miss., 351, it was said by this court that ‘ ‘whatever may be said of the receiving for record and recording a deed, it is evident that the taking of an acknowledgment of a grantor is a quasi judicial act, and cannot be performed by the grantee in the deed. The officer who takes an acknowledgment acts in a judicial character in determining whether the person representing himself to lie, or represented by someone else to be, the grantor named in the conveyance, actually is the grantor. He determines, further, whether the person thus adjudged to be the grantor does actually and truly acknowledge before him that he executed the-instrument. By his certificate he makes an official record of his adjudication on these points which cannot be impeached
In Wasson v. Connor the acknowledgment was taken by the cestui que trust in a deed executed to a trustee to secure the payment of debts. In Jones v. Porter, 59 Miss., 628, the acknowledgment was taken by the husband of the grantee, who was the procuring cause of the conveyance, and it was held that he was disqualified to act.
In the present case, the acknowledgment was made before the trustee, and the only question presented is whether this distinguishes the case, in principle, from those above noted. The precise question has not been presented in this court, but it has frequently arisen elsewhere, and, so far as we have seen the cases, it has been held that when, as here, the conveyance is to a trustee, with power of sale conferred on him for the payment of debts, the trustee is disqualified, as any other grantee would be, to take the acknowledgment of the grantor. Stevens v. Hampton, 46 Mo., 404; Brown v. Moore, 38 Texas, 645; Tavenner v. Barrett, 21 W. Va., 656; Bowden v. Parrish, 86 Va., 67; 19 Am. St. Rep., 873; note to Withers v. Baird, 32 Am. Dec., 754.
In the text of the Am. & Eng. Enc. L., vol. 1, p. 145, it is stated that a trustee may take the acknowledgment, but the cases cited (Bennett v. Shipley, 82 Mo., 448, and Darst v. Gale, 83 Ill., 136) are, if authorities at all, directly opposed. But since the execution of the deed in those cases was proved as a fact, what was said as to the incapacity of the trustee to take the acknowledgment was probably not decisive.
What we have said practically disposes of this appeal, for, although on the day of the term to which the case was postponed, the attorney for the plaintiff testified that one of the grantors had admitted the execution of the deed, the deed
The mere statement in the bill of exceptions that the plaintiff moved for a continuance of the cause on account of the absence of the witnesses, and that the application was denied, does not show error in the action of the court. For anything that appears in the record, the refusal of the couft may have b'een because the application did not disclose facts which entitled the plaintiff to a continuance. Since the application does not appear in the record, we must presume it was rightly refused.
The judgment is affirmed.