17 F.2d 377 | S.D. Iowa | 1926
If it were not for the later amendment of the Iowa Statute (Acts 40 E. G. A. Ex. Sess. H. F. 77, § 35), designating the form of acknowledgment, I would be inclined to agree with the referee in holding the statute to be directory only; but this amendment was made after the decisions of the Supreme Court holding the requirements of the statute to be mandatory. Therefore it indicates an intention on the part of the Legislature to conform the statute to the ideas expressed by the Supreme Court. Of course, the Legislature has the power to specify the conditions of acknowledgment, and such conditions are binding upon all courts.
We must remember that the statute has relation to an arbitrary requirement as to constructive notice; hence arbitrary conditions in the statute of acknowledgment may well be made. The case of Milner v. Nelson, 86 Iowa, 452, 53 N. W. 405, 19 L. R. A. 279, 41 Am. St. Rep. 506, has some valuable reading. The rule in other states is of little help, because of the variance in the different statutes; but, upon the whole, they tend to sustain the petition for review. The strongest consideration is that the Supreme Court of Iowa holds that the heading and the signature of notary is no part of the “certificate.” In the absence of such a holding, my first impression would be that “M. B. Haines, Notary Public in and for Montgomery County, Ohio,” was part of the “certificate”; but it seems that the Supreme Court viewed the certificate as consisting only of the words from “on the 17th day of February” to “the voluntary act of said corporation.” Code 1924, § 10103; Willard v. Cramer, 36 Iowa, 22, 23, 24; Greenwood v. Jenswold, 69 Iowa, 53, 55, 28 N. W. 433; Reeves & Co. v. Columbia Savings Bank, 166 Iowa, 411, 414, 147 N. W. 879; Lee County Sav. Bank v Snodgrass Bros., 182 Iowa, 1387, 1390, 166 N. W. 680.
In view of this holding, it is, of course,
Ordér.
• And now, to wit, on this 15th day of November, 1926, the petition for review herein, having been heretofore submitted, the court, being now fully advised, finds that said petition for review should be, and the same is, hereby granted, the ruling of the referee is reversed, and claim of Dayton Seale Company to preference is denied.
Exception allowed.
Code 1924, § 10096, prescribes the contents of the certificate, and section 10016 requires conditional contracts of sale or lease to be acknowledged and recorded, or filed and deposited, the same as chattel mortgages, to be valid against creditors or purchasers.
