Thompson v. Morgan

6 Minn. 292 | Minn. | 1861

By the Oourt —

Flandbau, J.

— The mortgage from Folsom •and wife to Morgan executed on the 23d day of October, 1854, was ineffectual to pass any interest in the land described. It was executed in the presence of one witness only and was attested by only one witness. The statute requires that such instruments must be executed in the presence of two witnesses, who shall subscribe their names to the same as such. Comp. Stats., 398, sec. 8. This point was discussed and decided in the case of Parret vs. Shaubhut, 5 Minn. R., 323. We there held that a mortgage of lands with only one. witness was not entitled to record, and passed no interest in the lands.

The objection that the certificate of acknowledgment was not under the seal of the officer making it, is untenable. We held in the case of Baze vs. Arper, decided at this term, that no seal is necessary to certificates of this character unless the statute authorizing them expressly requires it. 2 Cowen & Hill.’s Notes to Phil. Ev., p. 462. If the certificate styles the officer taking it as an officer authorized by law to perform the act, it will be prima facie evidence of his official character. Id., pages 461-2-3. The-statutes of this State at the date of the execution of this mortgage required no seal. Comp. Stats., 398, sec. 8.

Morgan took nothing by this mortgage. When Folsom and wife conveyed the premises to Babcock, April • 21, 1856, the conveyance was made subject to the Morgan mortgage, which was so expressed in the deed. Babcock of course had notice that such a mortgage existed, but that did not change the character of the mortgage nor cure its defects. He could safely take the title subject to the mortgage and rely upon the defence that was patent upon its face for his protection. Bab-cock might perhaps have estopped himself from questioning the validity of this mortgage by any appropriate clause in his deed recognizing it as a subsisting lien, and waiving its defects, but the mere admission of notice that such a mortgage existed by a recital of it in this deed through which he derived his title would not operate such a conseqiience.

Thompson claiming under and through Babcock is affected by the recitals in the deed from Folsom to Babcock to the same' extent that his grantor was, and no more. When Thompson took his mortgage from Babcock, he took with the same notice of the Morgan mortgage that was imputable to Babcock, to-wit, that such a defective mortgage existed, and he is in no way estopped from questioning it. O'Daughaday vs. Paine, decided this term.

The act of July 26, 1858, (Comp. Stats., 408-4,) could not have the effect of curing the defects in the Morgan mortgage to the prejudice of Thompson’s or Babcock’s rights ; it was passed subsequent to the date of the conveyances by which they acquired interests in the land. The Legislature have the right perhaps to cure such irregularities in conveyances as between the parties to them, and all persons who take subsequent to the cure being wrought, but it cannot disturb vested rights. We have been unable to find anything in .the cases cited by the Respondent to this point that would induce us to admit this power in the Legislature.

The judgment is reversed, and the case remanded for judgment according to the principles here indicated.