Parke v. Neeley

1. As to time, the date of a mortgage as it appears on the registry of the mortgage is not to be conclusively taken to be the date or time of its execution, and parol evidence is admissible to show, that in point of fact, it was subsequently executed and delivered. 2. As a general rule, a purchaser is not bound to look beyond a judgment-docket, for liens that should there appear. It is different, however, with the registry of deeds and mortgages. The chief object of recording them is to give actual as well as constructive notice to everybody of title and encumbrances thereon; and apart from notice, the only effect given to recorded instruments by the statute, is to make certified copies thereof evidence ; and in case of mortgages, to provide that they shall not be liens, until left for record, except mortgages for purchase-money, which continue to be liens from the date of their execution, if recorded within sixty days thereafter. . 3. It is not universally true that a purchaser may content himself with an inspection of the records.. There are many facts outside the record, about which he must inquire or suffer the consequences. Whatever puts a party upon inquiry amounts to notice, provided the inquiry becomes a duty; as in the case of purchasers and creditors, where the inquiry, if pursued, would lead to knowledge of the requisite facts. 4. A mortgage, on its face, showed that it was taken to secure purchase-money of the land therein described. It was not recorded until sixty-two days had elapsed from its execution and delivery. It appeared further, that it was not acknowledged until two days before the date of recording. There were other facts relating to the acknowledgment, from which it would be naturally inferred that the acknowledgment was on the same date as the execution and delivery. Held, that these circumstances, all of which appeared on the face of the papers, were sufficient to rebut the inference, which would otherwise have arisen from their dates, and were quite sufficient to put the purchaser at a sheriff’s sale upon inquiry and visit him with notice. Held, further, that there was no error in admitting parol evidence to prove the actual date of delivery.

Error to the Court' of Common Pleas of Chester county: Of January Term 1879, No. 85. Scire facias sur mortgage issued May 22d 1877, by Robert Neeley against The McLean & Benner Machine Company, mortgagors, and Thomas E. Parke, terre-tenant, the latter being the purchaser at sheriff’s sale of the land covered by the mortgage, under a judgment subsequent to it. The terre-tenant alone defended. The question was whether the mortgage was divested by the sheriff’s sale. The records in the offices of the recorder of deeds and the prothonotary showed as follows: Neeley, on the 11th of May 1875, was the owner of a lot (that covered by the mortgage) in Downingtown, Chester county, which on that day had been conveyed to him by the Downingtown Building and Improvement Company. He afterwards, for the consideration of $8500, conveyed the same lot to The McLean & Benner Machine Company. The deed was dated January 1st 1876, and in the conclusion it stated that it was executed “the day and year above written.” Following the signature is: “ Received the day of the date of the above written indenture, the sum of three thousand five hundred dollars, being the consideration within named. Robert Neeley.” The acknowledgment followed the receipt, and was taken .January 11th 1876. The justice who took the acknowledgment was one of the witnesses to the deed: it was recorded February 21st 187 6. The McLean Machine Company made the mortgage in suit to Robert Neeley. It is dated January 1st 1876, and is between The McLean Co. and Robert Neeley. It recites that the mortgagors by an obligation bearing even date with the mortgage were bound to Neeley in $7000, conditioned to pay $8500 on the 1st of January 1877, with interest semi-annually (the said sum being for the purchase-money of the hereinafter mentioned premises). The premises mentioned are the same as those conveyed by the deed to The McLean Company, but are recited as being the premises conveyed by the Downingtown Improvement Company to Neeley with the date of their deed, May 11th 1875. The conclusion was: “ In witness whereof, the said Machine company has caused this mortgage to be executed in its behalf by its president, and its common or corporate seal to be hereto affixed the day and year first above written. John McLean, President.” [l. s.] It was acknowledged by John McLean, President, before Alder- ' man William P. Hibberd (who was a witness to it), February 29th 1876. The mortgage was recorded March 2d 1876. On the 8th of May 1876, and subsequently, a large number of mechanics’ liens were entered against the McLean company, on the premises. The claims on which the liens were entered were filed at the time of their entry. They showed that work or materials were furnished from November 18th 1875, through December, January and February following, and afterwards. One of these claims was by James Copeland. His first item was December 15th 1875. This lien 'was assigned to'Neeley. Another was by Robert Neeley himself. His first item was also December 15th 1875. This lien was entered September 25th 1876. On the 25th of October 1876, one Graham recovered a judgment against the McLean company. On a venditioni on this judgment to January Term 1877, the premises were sold by the sheriff to Thomas E. Parke, for $1250. The sheriff’s deed to him was acknowledged March 14th 1877. An auditor was appointed to make distribution of the proceeds of the sale. They were all distributed amongst the mechanics’ lien creditors, and proved insufficient to pay them in full. Robert Neeley received a dividend on his own claim, and Copeland’s, assigned to him. On the trial, the plaintiff gave in evidence the mortgage and its record, and rested. The terre-tenant then gave in evidence the above-mentioned matter of record, and by oral testimony the following evidence: The lot, when sold to Neeley by the Downingtown Improvement Company, had on it a building, erected by them for factory purposes. Shortly before November 19th 1875, there was a meeting of the citizens of Downingtown and vicinity with officers and members of the McLean company — then an incorporated company — to start that company in Downingtown. Neeley was president. Inquiries were made as to who would subscribe for that purpose. Neeley said he would give this building (the property covered by the mortgage). At a conference afterwards of a committee on the subject with a representative of the company, Neeley said he would give the building as his share, and subscribe to paper “real estate,” naming the building at $3500; others subscribed. The company immediately commenced work for the erection of an engine-house, in connection with the factory, which they also altered; they erected another building, and also a third, called “the foundry.” The work was continued until it was complete. Neeley furnished stone for the foundation of the engine-house, and also for the foundry, commencing December 15th; for this his lien was filed. There was evidence showing the persons who did work and furnished materials, and the times when the work was done and materials furnished. In rebuttal, the plaintiff, under objection and exception, gave evidence for the purpose of showing that the mortgage had been executed and delivered on a day different from its date. McLean, president of the Machine company, the only witness called, testified: The company purchased from Neeley what was called the factory property. From about December 1st 1875, until the deed was made, the president urged him to make it; he refused to deliver it until the mortgage was made. The deed was received by the president about the 14th or 15th of January, and held by him in escrow till the 17th, when it was placed amongst the company’s papers as a delivery. This was simultaneously with the execution of the first mortgage, that is on the 17th of January, the date of the acknowledgment of the first mortgage. Upon consultation, the directors agreed to make such mortgage, and Neeley was notified. The deed was dated January 1st, at Neely’s own desire, because, as witness supposed, he wanted the mortgage to draw interest from the 1st of January. He had subscribed for $3500 worth of stock. Neeley made the date of the deed without consulting the president. The tenant submitted a number of points, asserting in substance : that as it appeared by the records that the mortgage was not recorded within sixty days from its execution, and as there were liens on the land prior to its date, and to the recording, the purchaser at sheriff’s sale took the land divested of the lien of the mortgage, and that its lien attached only from the day it was entered of record; that the purchaser at sheriff’s sale was not required to look further than the record,' nor was he bound by any matters in pais as to the time of the execution of the mortgage; that the mortgagee, by accepting the mortgage and putting it on record, asserted that its contents were true, and is estopped as against the purchaser at sheriff’s sale from averring that its date was not the day of its execution; that although the jury might believe the time of delivery was about the 14th of January, yet, if they believed that Neeley directed that it should be dated the 1st of January, he is estopped from averring that it was executed on a different day; that as Neely claimed from the proceeds of the sheriff’s sale dividends on the two liens which preceded the entry of the mortgage, he is estopped from saying that these liens were not pi-ior to the mortgage, the proceeds of the sale being a substitute for the legal title; and that the plaintiff was not entitled to recover. All these points the court refused. In the general charge, the court, Futhey, P. J., inter alia, said: “ We charge you now that if you find that the deed and mortgage — the deed made to Mr..Neeley, and the.mortgage received by him for purchase-money — were delivered at the time spoken of by witness McLean, president of the Machine company, on the 17th of January, instead of the 1st day of January, when they bear date, your verdict will be for the plaintiff. I repeat: if these instruments were delivered on the 17th of January, as testified to by McLean, instead of the 1st of January, when they bear date, and when without this testimony it would be presumed they would be delivered, your verdict will be for the plaintiff, and I must say to you there is no contradiction of Mr. McLean, the only witness who speaks to the point, and that he is positive about it that the deed was delivered on that day. I see nothing in the case to create a doubt of the accuracy of his belief, or the justness of his statement.” The verdict was for plaintiff for $4112.50, and after judgment thereon, the defendant took this writ, assigning for error the admission of the testimony of McLean, the refusal of the points, and the portion of the charge above noted.