Wood v. Cochrane, 39 Vt. 544

Wood v. Cochrane

39 Vt. 544 | Vt. | 1866

*548The opinion of the court was delivered by

PiERboiNT, Ch. J.

The only question arising in this case that has been presented for our consideration is, whether the mortgage deed from the defendant Cochrane to Samuel F. Wood appears to have been so acknowledged by the grantor Cochrane as that its being recorded in the town clerk’s office in the town where the land lies, operates as constructive notice to subsequent purchasers of its existence, such purchaser having no actual notice of it. The certificate of the acknowledgment attached to the deed is as follows:

“ Middlesex, ss., Lowell, March 10th, 1843. Then the above named Samuel F. Wood acknowledged the above, instrument to be his free act and deed. Before me,

Julian Abbott, Justice of the peace.”

This certificate, upon its face, shows that it was Wood, the grantee, that acknowledged the deed, and not Cochrane, the grantor.

It is insisted on the part of the oratrix to whom the said S. F. Wood gave the mortgage and note by his will, that it was Cochrane, the grantor, who, in fact, acknowledged the deed, and that the insertion of the name of Wood was a mere clerical error of the magis* trate, and that the court should correct it by construction, and treat the instrument the same as it would, if the name of the grantor had been inserted instead of that of Wood, and give it the same legal effect to all intents and purposes, and as to all persons.

The principle is well settled in this state and elsewhere that when it is perfectly apparent upon the face of a written instrument that, a mere clerical error has been made, and when it is apparent from the face of the instrument what the correction should be, to make the instrument what it would have been if the error had not occurred, courts will correct such error by construction, that is they will treat the instrument the same, and give it the same legal effect and operation as though the error had not been made.

The certificate of the magistrate of the acknowledgment of a deed is an independent instrument, complete and perfect of itself; it is no part of the deed ; it is no act of the parties. It is attached to the deed and is necessary to give such deed full effect in certain respects. Now in looking at this certificate it is not apparent that *549any mistake lias been made, there is nothing in the certificate to indicate whether it was the grantor or the grantee.who acknowledged the deed, except the name itself. If the certificate had been in the nsnal form in this state, that is that “S. F. W.,the signer and sealer of the foregoing instrument,” etc., “or the person known to me as the signer,” etc., there would have been something to show that it was in fact the grantor who had acknowledged, and something on which the court could rely in correcting the error by construction. In looking into the deed we see that Cochrane is the man who should have acknowledged it, but there is nothing to show that he did, the fact that he ought to have done it is hardly sufficient to warrant us in saying that he did, especially when the certificate of the magistrate shows affirmatively that it was another man. Whether an error was committed in writing the name of the man who ¿cknowledged, or in taking the acknowledgment of the -wrong man by mistake, is a question that cannot be determined by anything that appears either on the face of the certificate or of the deed.

This is not like the case of Richmond v. Woodward, 32 Vt. 833. In that case the error consisted in the writing of a wrong name in the condition of a bond. It was perfectly apparent on the face of the instrument that an error had been committed, it appeared from the words preceding the name, that a name that had before been' used in the bond was intended to have been written there, and it was perfectly apparent from the whole tenor of the instrument what name was so intended. The name inserted was that of a person who had no connection with the bond. The court said they would correct the error by construction and give the bond the same effect as if the mistake had not been made.

In the case of Chandler v. Spear, the grantor’s name was Richard Gr. Bailey, and in the certificate of acknowledgment Richard G-. was written and Bailey omitted. The court held that what was written sufficiently indicated who the person was that had acknowledged the deed, and gave it the same effect as though the whole name had been written.

Our statute declares that no deed of bargain and sale or mortgage, etc., shall be good and effectual in law to hold lands against any *550other person but the grantor and his heirs unless the same be acknowledged and recorded, and as this deed was not so acknowledged, the record of it cannot operate as constructive notice to Coch-rane’s grantees, and to charge the land with this mortgage in their hands. As the deed upon its face as spread upon the record, must show a compliance with the requirements of the statute in order to give it effect as constructive notice, parol evidence cannot be brought in aid of any defect.

Decree of the chancellor dismissing the bill affirmed and case remanded.