Trerise v. Bottego, 32 Mont. 244

32 Mont. 244 | Mont. | 1905

MR. COMMISSIONER BLAKE

prepared the opinion for the court:

This is an appeal by Thomas M. Hodgens from a judgment and order overruling his motion for a new trial. There is no controversy about the facts, and only one question is presented for decision.

Mary H. Bottego owned real property in the county of Silver Bow, and made a mortgage thereon, January 24, 1898, to J. H. Trerise, to secure the payment of a promissory note and interest. Her husband, John B. Bottego, signed the note and mortgage. The mortgage is in the usual form, and the acknowledgment is as follows:

“State of Montana,

“County of Silver Bow.

“On this Twenty-fifth day of January, 1898, before me I. C. Bachelor, a Notary Public in and for the County of Silver Bow, State of Montana, personally appeared Mary H. Bottego and John B. Bottego (Her Husband) known to me to be the persons described in, and who executed the foregoing instrument, and who severally acknowledged to me that —he— executed the same. In Testimony Whereof, I have hereunto subscribed my hand and affixed my Notarial Seal on the day and year in this certificate above written.

[Seal] “I. 0. BACHELOR,

“Notary Public in and for Silver Bow County, Montana.”

The above word “he” is printed in the blank that was used by the officer taking the acknowledgment, and there is a sufficient space for letters to be written before and after it. The; mortgage was filed for record January 26, 1898, in tbe office of the county recorder of said county, and Trerise assigned the note and mortgage February 1, 1900, to tbe plaintiff. The-property was transferred May 15, 1900, to defendants John J. Ferrell and Fred M. Ferrell, wbo conveyed tbe same April 15, 1901, to Hodgens, and bis deed was recorded April 24,. 1901. This action was commenced April 28, 1902, to foreclose tbe mortgage, and Hodgens answered for himself alone. Tbe other defendants made no defense. A decree was made- and entered for tbe foreclosure of the mortgage according to its. terms, and Hodgens. appealed.

It is tbe contention of tbe appellant that tbe certificate of tbe acknowledgment does not comply with the statute, and is a nullity; that tbe county recorder bad no authority to record tbe mortgage; and that tbe property was purchased without-notice of tbe encumbrance.

Tbe law applicable to constructive notice is defined in tbe following provisions of tbe Codes: “Every conveyance of real property, acknowledged or proved, and certified and recorded as prescribed by law, from tbe time it is filed with tbe county clerk for record, is constructive notice of tbe contents thereof to subsequent purchasers and mortgagees.” (Section 1640,. Civil Code.) “Every conveyance of real property other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or encumbrancer, including an assignee of a mortgage, lease, or other conditional estate, of the-same property, or any part thereof, in good faith and for a. valuable consideration, whose conveyance is first duly recorded.” (Section 1641, Civil Code.) One section appears-in two Codes: “Every person wbo has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of tbe fact itself, in all cases in which, by prosecuting such inquiry, be might have-learned such facts.” (Section 4667, Civil Code, and section 3465, Code of Civil Procedure.) This section embodies an. old rule of chancery. Another section has been incorporated in two Codes: “Notice is: 1. Actual — which consists in express information of a fact; 2. Constructive — which is imputed by law.” (Section 4666, Civil Code, and section 3464, Code of Civil Procedure.) These provisions with respect to notice must be construed together.

Did the omission in the certificate of the acknowledgment render the instrument void as to appellant? This subject is discussed in McCardia v. Billings, 10 N. D. 373, 87 N. W. 1008, 88 Am. St. Rep. 729. A mortgage was given upon land by Mrs. McOardia and her husband, and the acknowledgment is as follows:

“Territory of Dakota,)

“County of Pembina. )

SS’

“On this 10th day of October, in the year one thousand eight hundred and eighty-four, before me, John V. Mclntire, a notary public in and for said county and territory, personally appeared William McOardia and Margaret McOardia, known to me to be the person who are described in and who executed the within and foregoing instrument, and acknowledged to me that he executed the same.

[Notarial Seal] “JOHN V. McINTIPE,

“Notary Public, Dakota Territory.”

On the trial the introduction of the mortgage in evidence was objected to on the ground that the acknowledgment did not comply with the statute, and that the instrument was not entitled to be recorded. The court said: “It must be conceded that, if the acknowledgment of the mortgage was so defective that it would not have entitled the mortgage to be recorded in the office of the register of deeds, then the certificate of the acknowledgment alone would not be any evidence of the execution of the mortgage. * * * It is also true that the certificate of acknowledgment must contain a- substantial compliance with the statute pertaining to acknowledgments; that is, that the certificate must contain a statement of every fact that the statute prescribes shall be incorporated therein. * * * It is also true, as a matter of law, that obvious errors or omissions, clearly appearing upon the face of the certificate to be clerical in their nature, will not invalidate the acknowledgment, and, before the certificate will be held fatally deficient, there must be an absence of some essential fact of a substantial character. * * * Courts, however, will construe the language of certificates of acknowledgment liberally, and hold them valid if that can be done by a fair and reasonable construction of the language used. Turning now to the acknowledgment of the mortgage in question, we find that it unequivocally appears that William McCardia and Margaret McCardia personally appeared before the notary. The words immedi-' ately following their names in the certificate, to wit, ‘known to me to be the person,’ considered in connection with the words ‘who are described in,’ show beyond question that the word ‘person’ refers to William McCardia and Margaret Mc-Cardia. If it does not refer to these two grantors, then the verb ‘are’ obviously would not.have been used. The omission of the letter ‘s’ from the word ‘person’ was obviously a clerical omission. The pronoun ‘he’ refers to the word ‘person’ preceding it in the same sentence. It would render the whole sentence useless and meaningless, so far as Margaret. McCardia is concerned, to place upon it the construction that she appeared before the notary, and acknowledged that her husband acknowledged the execution of the mortgage. Either that construction must be placed upon it, or we must hold that the word ‘he’ was not changed to ‘they’ through a clerical oversight.” The court cites Montgomery v. Hornberger, 16 Tex. Civ. App. 28, 40 S. W. 628, in which it is decided that a certificate of joint acknowledgment by a married woman and her husband is not vitiated by stating that “he,” instead of “they,” executed the deed.

In Carpenter v. Dexter, 8 Wall. 513, 19 L. Ed. 426, involving the effect of a certificate of acknowledgment of a deed, Mr. Justice Field, for the court, said: “In aid of the certificate, reference may be had to the instrument itself, or to any part of it. It is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances, or the proof of them, to be defeated by technical or unsubstantial objections.”

Rehearing denied May 3, 1905.

We are therefore of the opinion that the mortgage was acknowledged substantially in accordance with the provisions of the statutes, supra, and that the record thereof imparted constructive notice of its contents to Hodgens.

We recommend that the judgment and order appealed from be affirmed.

Per Curiam. — For the reasons stated in the foregoing opinion, the judgment and order are affirmed.

Affirmed.