Knighton v. Smith

1 Or. 276 | Or. | 1859

Boise, J.

As to the first ground of error alleged—that the certificate of acknowledgment to the release was insufficient. We are satisfied that all acknowledgments, taken without this State, unless before a commissioner, appointed by the governor of this State for that purpose, must be supported by a certificate of a clerk, or other certifying officer of a court of record, as provided in section 12, page 520, of the statutes of this State; for, when the statutes make an express provision affecting the authentication of deeds, it must be strictly complied with.

The court is also satisfied that it was incumbent on Smith to record the release of the mortgage, before he could make a valid tender of the deed, which would bind Knighton; for, though the release might be sufficient to extinguish the mortgage, as between Knighton and the mortgagee, still, the record showed a subsisting incumbrance, and a cloud upon the title to be conveyed by the deed, which the imperfect release could not remove, without some further trouble and expense to perfect the same, and make it available. This trouble and expense Knighton was not bound to incur; for, by the agreement, he was to have the premises free from incumbrance.

This seems to have been the view taken by the court below, for as much is intimated in the instructions there given. It appears by the record, in this case, that on the 1st of June, 1858, when Smith presented the deed and this release of the mortgage, Knighton expressed himself satisfied, with the release, by saying it was all right. He did not then object on this account, but based his refusal to comply with the contract on another ground, to wit, that Smith had not procured a release from Bennett and Perry, permitting him to turn the water; and alleging that he (Knighton) could not get such a permit from them; and having then declared, that he would not then complete the contract for that reason. Smith had a right to consider the contract as abandoned by Knighton, on the ground which he then assigned, and it was not necessary for Smith to take any further step to fix the liability of Knighton; for, by his own declaration, Knighton waived all other objections except the one relating to the right of Bennett and Perry to the water.

The only remaining question is, did the court err in charging the jury that it was incumbent on Smith to obtain a relinquishment of Bennett and Perry to the water. This is purely a question of construction of a written instrument; and we think that ño fair construction of the language of the contract would make it incumbent on Smith to procure a permit from Bennett and Perry to Knighton to turn the water; so that in case Smith failed, he would be liable to an action for such failure.

Taking the contract in its stringent sense against Smith, it can only be construed to mean, that Smith could have no right of action while the right of Bennett and Perry to command the water remained unextinguished; and the issue in the case presented that question to the jury, where, we think, it was properly left by the court.

Judgment is affirmed.