10 R.I. 393 | R.I. | 1873
Lead Opinion
"Be it remembered that on this twenty-ninth day of August, A.D. 1868, before me, the subscriber, Joseph B. Nones, a Commissioner in and for the State of New York appointed by the Governor of the State of Rhode Island to take proof and acknowledgment of deeds, mortgages, letters of attorney, or any other instrument to be used or recorded in the said State of Rhode Island, and to administer oaths and affirmations, take depositions, c., c., appeared Orange D. Day, and Eliza H. Day his wife, the persons described in and who executed the annexed instrument (between them as one of the parties thereto, and John Kavanaugh of New York, the other party thereto), and acknowledged to me that they severally executed the said instrument voluntarily and freely, for the uses and purposes therein stated. And the said Eliza H. Day, the wife of the said Orange D. Day, on being by me made fully acquainted with the contents of said annexed instrument, on an examination by me privately, separate and apart from her said husband, and having the same fully explained to her, she acknowledged to me and agreed on such private examination as aforesaid, that she did execute the said instrument of her own free will and accord; subscribe, seal, deliver, and without any fear, coercion, or compulsion, or undue influence of her said husband, or from any one, or of any other person or persons whatsoever, and with an intention thereby to renounce, give up, and forever quitclaim her right of dower and thirds, and all her other interest of, into, and to the lands and tenements *395 therein mentioned, and that she did not wish to retract the same." The bill was brought against the said Eliza H. Day and her husband Orange D. Day, and taken pro confesso against the latter. The defences set up by the former are stated in the opinion of the court.
Browne Congdon, for the complainant, contended, I. That the commissioner's certificate substantially contained the essential requirements of the statute and was therefore sufficient, citing Brown v. Farron, 3 Ohio, 140; Connell v.Connell, 6 Ohio, 353; Raverty Wife v. Fridge, 3 McLean, 245; Ranney v. Gordon, 6 Humph. 345; Owen v. Norris, 5 Blackf. 479; Dundas v. Hitchcock, 12 How. 256; Talbot v.Simpson, Pet. C.C. 188; Langhorne v. Hobson, 4 Leigh, 224;Vance v. Schuyler et al. 1 Gilman, 160; Tod v. Baylor, 4 Leigh, 498; Meriam v. Harsen, 2 Barb. Ch. 232.
II. That the evidence introduced to contradict or vary the commissioner's certificate ought not to be received: Because, 1st. Parol evidence ought not to be received to vary the certificate: 2d. No parol evidence can be received to contradict the certificate, unless fraud or duress be shown; 3d. The fraud or duress must be participated in either by the commissioner or by the person claiming under the deed; citing Ridgely v.Howard et al. 3 Har. McH. 321; Jamison v. Jamison, 3 Whart. 457; Schrader v. Decker, 9 Pa. State, 14; Hayden v.Westcott,
In the case at bar the plaintiff was not present when the deed was acknowledged before the magistrate; and, as we have already said, the evidence is insufficient to charge him with any fraudulent collusion or complicity with the husband; and as to the magistrate we see no reason whatever to suspect him of any participation in any fraud which was (if any there was) practised on the said Eliza H. Day by her husband.
The third ground of defence is that the certificate does not show a compliance with the statute. The certificate does in our opinion expressly show a substantial compliance with the statute in every respect, except that it omits to state that the deed was shown to the said Eliza H. Day, when her acknowledgment was taken. Is this a fatal defect? It has been held in Kentucky, under a statute very similar to ours, that the certificate is not invalidated by the omission to state therein that the deed was shown and explained to the feme covert making the acknowledgment. Gregory's Heirs v. Ford, 5 B. Mon. 471, 481;Nantz v. Bailey, 3 Dana, 111. The ground of these decisions is, that though the statute requires *398 the officer to show and explain the deed, it does not require him to certify anything more than that the feme, being privily examined, made such declaration or acknowledgment as is prescribed, and that this being expressly declared by the certificate, it may be implied that the officer did his duty in showing and explaining the deed. But in the case at bar we do not feel called upon to decide whether our statute is capable of a similar construction; for, though the certificate does not state that the deed was shown, yet we think a substantial compliance with the statute in this respect is to be inferred from what the certificate does state, and from what appears on the face of the deed. The purpose of requiring the deed to be shown is doubtless to insure its identification. Now the certificate states that this deed, described therein as "the annexed instrument," "the said instrument," and "the said annexed instrument," after being fully explained to the said Eliza H. Day, was acknowledged by her, and that she agreed "that she did execute the said instrument," c., "and that she did not wish to retract the same.". This certificate could hardly have been made by a magistrate unless he had shown the deed to the feme covert for identification, or knew that she had seen and identified it. But, beyond this, the deed itself shows that the magistrate who took the acknowledgment was one of the subscribing witnesses, and that the deed was executed and acknowledged the same day. This furnishes further proof, if further proof be needed, that, as between the magistrate and the said Eliza H. Day, the deed must have been perfectly identified, and that too by seeing the same. See Carpenter v. Dexter, 8 Wal. 513; McIntire v. Ward, 5 Binn. 296. Therefore, while we should be better satisfied if it had been certified that the deed was shown, nevertheless we think that, under the circumstances, we should not be justified in holding that the certificate of acknowledgment is fatally defective. We decide that the defence cannot be sustained upon either of the three grounds upon which it rests, and that the plaintiff shall have the decree of foreclosure for which he asks.
Decree accordingly, referring the case to a master to compute the amount due on the mortgages.
The case subsequently came again before the court upon the *399 respondent's exceptions to the master's report. The master's report found that the sums specified in the bonds to secure which the mortgages were given were to bear interest from date; that at the date of said instruments the parties to this suit were all residents of the State of New York, and that all the papers were executed in that state, although the land covered by said mortgages was in East Greenwich, R.I. The report further found that at the date of said instruments, and up to the time of said report, the legal rate of interest in the State of New York was and had been seven per cent. per annum. Upon these facts the master computed interest upon the bonds at the rate of seven per cent. per annum, and to this computation the respondent excepted.
Metcalf, for the respondent, in support of the exception, contended, that although the bonds and mortgages, being made in New York, would, if enforced there, carry interest at New York rates, yet the complainant having no stipulation as to interest, and choosing to resort to Rhode Island courts, could only recover what the Rhode Island statute gives him, and six per cent. interest only should be computed and allowed, citing Ayer v.Tilden, 15 Gray, 178; Ives v. Farmers' Bank, 2 Allen, 236;Andrews v. Pond, 13 Pet. 65, 78; Cooper v. Waldegrave, 2 Beav. 282.
Browne Congdon, for the complainant, contra, to the point that the law of New York should govern in the computation of interest, and that the fact that the land mortgaged was situated in Rhode Island did not affect the rule, cited Story Confl. Laws, §§ 294, 295; Consequa v. Fanning et al. 3 John. Ch. 587; Pearce v. Wallace, 1 Har. J. 48; Cowqua v.Lauderbrun, 1 Wn. C.C. 521; Bushby v. Camac, 4 Wn. C.C. 296; Winthrop v. Carleton,
Addendum
Interest upon a contract for the payment of money, where it is payable as interest by the terms of the contract, *400
is to be paid according to the law of the place where the contract is made, unless it is elsewhere to be performed. The bonds, secured by the mortgage here in suit, were made in New York, between parties resident there, and, as they make no provision for payment elsewhere, were presumably to be paid in New York. Accordingly interest on them, if payable as interest, would have to be paid at the legal rate in New York, — the fact that they are secured by a mortgage of real estate in Rhode Island being ineffectual to vary the rule. De Wolf v.Johnson, 10 Wheat. 337; Lockwood v. Mitchell, 7 Ohio State, 387; Varick's Ex'r. v. Crane, 3 Green Ch. 128; Dolman v.Cook,
The interest, however, is payable not as interest, there being no stipulation for interest in the bonds, but as damages for the non-payment of the bonds at their maturity; and the counsel for the defendants contends that, where interest is to be paid as damages, it is to be computed at the rate established by the law of the place where the suit is brought, and not at the rate established by the law of the place where the contract was made or to be performed. The cases cited show that such is the rule in Massachusetts. Ayer v. Tilden, 15 Gray, 178; Ives v. Farmers Bank, 2 Allen, 236. The case of Cooper v.Waldegrave, 2 Beav. 282, does not show that such is the rule in England. In that case, the question was at what rate of interest was stated to be bills of exchange, drawn in Paris and there accepted, but payable in London. No particular rate of interest was stated to be payable on the face of the bills. The holder of the bills, in a suit in England against the acceptor, claimed interest at six per cent., the legal rate in France. The court decided that English interest, at the rate of five per cent., should be paid. The reason given for the decision was, that interest was given as compensation for non-payment in England and for the delay suffered there, and that the law of the place where the default happened must govern the allowance of interest arising out of the default. The inference is, that if the default had happened in another place, the interest would have been allowed at the rate established by the law of such other place.
In Gibbs v. Fremont, 9 Exch. 24, a bill of exchange, on the *401 face of which no interest was reserved, was drawn in California upon a drawee at Washington, and protested for non-acceptance. In an action by the indorsee against the drawee, in the Court of Exchequer in England, the plaintiff recovered interest, by way of damages, at the rate of twenty-five per cent., being the rate payable in California. The question considered was whether the plaintiff should have interest at the rate current in Washington or in California, no claim even being advanced that only the much lower English rate was to be paid. The court followed the decision in Allen v. Kemble, 6 Moore P.C. 314, in which it was said that the drawer of a bill of exchange "is liable for payment of the bill, not where the bill was to be paid by the drawee, but where he, the drawer, made his contract, with such interest, damages, and costs as the law of the country where he contracted may allow." See also Ekins v. East India Company, 1 P. Wms. 395, and 1 Eq. Ca. Abr. 288 (E).
In Pecks v. Mayo,
We think the rule which allows interest according to the law of the place where default is made, in a case where interest is recoverable as damages, is the more reasonable rule, and the rule which is best supported by authority; and that, where no special rate is reserved, there is no distinction which can justly affect the rate to be recovered, between interest recoverable as interest and interest recoverable as damages.
The exception is overruled.