35 Iowa 60 | Iowa | 1872
“Be it remembered that on the 7th day of December, 1869, before me, a notary public in and for said county,*62 personally E. A. Meurer, to me personally known to be the identical person whose name is affixed to the foregoing mortgage as mortgagor, and acknowledged the same to be his voluntary act and deed.”
The mortgage had been recorded. The defendants objected to the introduction of the mortgage in evidence, for the reason that neither the instrument nor the record offered in evidence conveyed to defendants, the attaching creditors, any notice that any mortgage had been given on the stock levied upon by the attachment in this case. The court overruled the objection and admitted the evidence; and this ruling is the first error assigned.
The objection, as we understand it, is grounde4 upon the omission from the certificate of the word “ appeared,” preceding the name of the party acknowledging the instrument. It is worthy of note that the statute, in terms, does not require that the certificate shall set forth that the person making the acknowledgment did personally appear before the officer. Rev., § 2227. Of course, the fact would be necessary in order to take the acknowledgment, but the statute does not expressly require that such fact shall be set forth in the certificate. But see the construction of the statute, per Baldwin, J., in Bell v. Evans, 10 Iowa, 358. The omission of the word “ appeared ” from the certificate in this case was manifestly a mere clerical error. But, even if the omission was fatal as to the then validity of the acknowledgment, it has been cured by the act of April 28, 1870 (Laws of 1870, chap. 160, p. 201). Defendants at that time had no interest in the property. Brinton v. Seevers, 12 Iowa, 393. And, further than this, the original mortgage would be competent evidence although not acknowledged or recorded. This has been too often held to now require reference to cases. Of course, third persons would not be affected by it except upon proof of notice to them of its existence. But the
The defendant asked two instructions to the jury, embodying substantially the same proposition. • One of them was as follows : “ If yon find that any portion of the property levied upon by the attachment in this case had been acquired by Meurer after the execution of the mortgage in controversy, as to such property the attachment would be the paramount claim, and as to- such property you should find the right to possession to be in defendant.” This was refused by the court, and rightly so, regardless of the question whether or not a mortgage may be made to cover after-acquired property. For the instruction entirely omits the further material fact, which the evidence in this case tended to show, to wit: that the plaintiff had taken actual possession of all the mortgaged property and acquired the complete title by purchase in part payment for his mortgage debt, before it was seized under the writ of attachment. If the jury should so find the fact, then, clearly, even as to the after-acquired property, the right to the possession would not be in defendant.
The leading case in this country bearing upon the question, and holding that after-acquired property could not be mortgaged, is the case of Jones v. Richardson, 10 Metc. 481. That case was “decided according to the principles of the common law,” as was said by Wilde, J., who wrote the opinion in it; while the case of Mitchell v. Winslow (2 Storey’s R.), 630 “was decided on principles of equity.” The elaborate review of the authorities made by Wilde, J., in the case, shows that it is made to turn upon technical common-law rules; and he draws a distinction between that case and others cited by him on this ground, especially the case above cited and Fletcher v. Morey (2 Storey’s R. 555). See, also, Abbott v. Goodwin, 7 Shepley, 408. The same court afterward, in Moody v. Wright, 13 Metc. 17 (i. e.), 29, recognized that decision as “involving the question as to the validity of such a mortgage in a court of law,” but it also applied the same rule in the case then under examination, though it was a case in chancery, showing that there was no such equity in the case as would affect the technical legal rights of either party. These cases were followed in Barnard v. Eaton, 2 Cush. 294, and in Codman v. Freeman, 3 id. 306.
On the other hand, there are strong eases taking the opposite view. In Langdon v. Horton, 1 Har. (23 Eng. Ch. R.), 549, the Vice-Chancellor says: “ It is impossible
• By the strict common-law rule, it is doubtless true, that a party could not mortgage property, not then in esse, so as to vest a title in the mortgagee when the property should come im, esse. But, at the civil law he could. Domat, part 1, book 3, title 1, section 1, article 507. Courts of equity, and under our practice, courts of law also, will recognize the rights of such mortgagee, and enforce them as against all persons having notice of them. If it does not, at the common law, amount to a technical legal mortgage, it is, at least, an equitable mortgage. Of course, it is necessary that such future-acquired property, shall be capable of identification.
Affirmed.