32 S.E. 715 | N.C. | 1899
The plaintiffs' mortgage was executed in 1884 and duly registered. An interlocutory decree of foreclosure thereon was entered in this action in 1890, but before sale made the defendants executed a second mortgage to Worth Worth, in 1897, who are made parties defendant and plead that they should be preferred in the decree of foreclosure by reason of the fact (which is admitted) that the justice of the peace who took the acknowledgement of Purcell, the mortgagor, and the privy examination of his wife, was the brother of Purcell. Whether this made the registration of the first mortgage taken upon such acknowledgment and privy examination void, is the vital question in this case, for if it did, no notice of the first unregistered mortgage, however full and explicit (Quinnerly v. Quinnerly,
In White v. Connelly,
Long v. Crews,
There is no principle of law, nor precedent, which invalidates an acknowledgment and privy examination taken before an officer who has neither any interest in the instrument nor is a party thereto, simply because he is related to the parties. Such proceeding is (265) not adversary, and the acknowledgment and privy examination are in the nature of declarations against interest of the relatives making them. The persons claiming thereunder are strangers. Certainly an officer can administer an oath to a relative in an ex parte proceeding in which the officer is neither a party nor interested, and this is of no higher dignity. While propriety might discourage an officer taking acknowledgment and privy examination of instruments where the parties thereto are nearly related to him, there is no illegality attaching to his action.
The court below properly adjudged that in the decree of foreclosure the second mortgage must be subordinate to the first mortgage.
AFFIRMED.
Cited: Blanton v. Bostic,