Wickersham v. Reeves

Isbell, J.

So far as the mortgage executed to Martin, is concerned, in this adjudication, there is no question made, 'but that it contiuued to be a valid subsisting lien on the premises, up to the time of the purchase of the legal title by petitioner; but it is claimed, that at that time, it merged into the legal title, and became extinct. We think, that this view is not sustainable. The evidence clearly shows, that this was not the intent of the parties to the sale of the legal title to the petitioner, nor was it for the interest of petitioner. We, therefore, conclude, that this mortgage still continues to exist as a lien on the premises. (1)

A question is made as to the sufficiencj'' of the 'acknowledgment of the deed of trust. The certificate shows, that it was acknowledged to be the act and deed of the party, but does not show that it was his voluntary act and deed. The rule adopted, in giving construction to certificates of acknowledgment, by this court, is, that although the language of the statute need not be literally followed, yet words should "be used of the same force and import. Says Kinney, J., in delivering the opinion in Tiffiney v. Glover, December term, 1852: “We have never held, in giving construction to acknowledgments, that the literal language-of the statute should be adopted by the officer, but that it is sufficient, if he employ words of the same import and force.”

The word voluntary, under our statute, is made an important word, and is in fact of the essence of the acknowledg *418 ment. Have there been words used in the acknowledgment before us, of like import ? There have not. There is a clear legal distinction, which has ever existed, between a man’s deed, and his voluntary deed. Thus, it is. laid down in 2 Bacon’s Abrg. 775: “-If a man execute a deed by duress, he cannot plead non est factum; for it is his deed, though he may avoid it by special pleading.” We conclude, therefore, that the record of this deed of trust, was of no validity as against these defendants, without actual notice. Code, § 1211.

But it is claimed, that actual notice to the defendants of the existence of this deed of trust, was proved. It appears, that petitioners offered in evidence, a notice of their rights under it; and an indorsement thereon made by the officer that conducted the execution sale, to the effect, that he had read it at the time of the sale. This evidence was objected to by defendants, on the ground that there was no evidence that it had been read at the sale, and the objection was sustained. Petitioner then offered to prove, by the officer, that he read the notice at the sale, and that one of the defendants had seen it. This was objected to, on the ground, that this being a chancery suit, it could only be proved by depositions-regularly taken, and on the ground, that it was contrary to rule third of the court, which is: “All chancery cases, other than divorce, and the foreclosure of mortgages, will be tried upon written testimony, in the form of depositions, except the proof necessary to let in record or documentary evidence.” And the court sustained the objection, but offered to continue the cause, to enable the petitioner to make said proof by depositions, but the petitioner declined a continuance, and excepted to the ruling. He afterwards proved, that the execution and notice attached, were received by him from the office of the clerk of the District Court of the county of Lee, at Keokuk, and then offered the , notice and indorsement in evidence, to which defendants objected, on the giound of its being incompetent; but the court overruled the objection, and permitted them to read, to which defendants excepted. These several exceptions are *419 now brought to the notice of the court, and here insisted upon.

The reading of this notice, and the making the return thereon of having read the sáme at the sale, was no part of the officer’s official duty. Hence a return of such facts, simply, would be incompetent to prove their existence. The exclusion of the proof by parol, offered, we think, was also proper under the rule. The court went to the extent of its duty, in offering'to continue the cause, to allow petitioner to make the proof. 8 Greenleaf’s Ev. §§ 809 to 811.

Did the proof that this notice was received from the clerk’s office, attached to the execution, make it competent to prove the reading at the sale ? We can see no good reason for holding that it did. The fact that the paper was read at the sale, is not as satisfactorily proved by the fact of such notice coming from the clerk’s office, attached to the execution, as it would be by the oath of the person who read it, or of any person present at the sale, who heard it read. There is no means of knowing at what time, or by whom, it was attached to the execution, and to permit such evidence to prove an important fact, when better evidence was confessedly at hand, would be too serious an infraction on the rule, that the best evidence shall be produced of which the case, in its nature, is susceptible. We conclude, then, that the court erred in allowing the notice, and return thereon, to be read in evidence. And excluding this there is no evidence that defendants had actual notice of the existence of the deed of trust, even at the sale. This being the case, it is unnecessary to consider the question made as to the effect of notice, after the rendition of the judgment. There not being sufficient proof of notice of the deed of trust, it follows that at the time of the rendition of the judgment under which defendants hold, the mortgage originally to Martin, constituted the only lien held by petitioner; and as this mortgage lien still subsists, the defendants became purchasers of the interest of Lockman in the lot, subject to said mortgage only.

But petitioner, after the rendition of the judgment, hav *420 ing become possessed of tbe legal title, and at tbe time of tbe institution of this suit, tbe time allowed for redemption from tbe execution sale to defendants, not baying expired, tbe- petitioner bad a clear right to redeem from said sale; and had be offered to do so, and defendants bad refused the redemption money, we should have no difficulty in coming to a conclusion in this case. But there being no such offer shown, we are in great doubt as to what should be tbe proper decree in tbe premises. But, inasmuch as this bill is brought to adjust tbe equities between tbe parties, as they stood at tbe time of tbe institution of tbe suit, we conclude we are justified in still giving to tbe petitioner tbe right to redeem, on paying tbe interest allowed by law on bids at execution sales to this date, and all costs of tbe proceeding.

It is insisted by petitioner here, that if tbe evidence will not sustain tbe decree below, that it is tbe duty of this court to remand tbe cause. Tbe petitioner was only bound to furnish sufficient evidence to obtain a decree; and if this should now be found insufficient, then justice requires that tbe.petitioner should have .an opportunity to make further proof. But if this were allowed in this case, we see no reason why tbe same reasoning should not be applied to every other. And in this case in particular, where an offer was made to postpone tbe cause, to enable tbe petitioner to furnish tbe desired proof, which was declined, an ajoplication of this kind cannot be entertained.

Tbe decree of tbe District Court will be reversed, and a decree entered in this court in accordance with this opinion.

In the absence of stipulations to the contrary, the mortgagor of real ■estate retains the legal title, and the right of possession .thereof. -Code .§1210.