Brinton v. Seevers

Wright, J.

Several causes, general in their nature, are assigned in the demurrer ; but the special assignment and the one relied upon in argument is, that the deed to complainant ; was so imperfectly acknowledged that its recording did not impart notice of its contents to respondent, and that as a consequence, complainant acquired no title thereby against the judgment, execution and purchase thereunder by respondent.

We are of the opinion that the deed was defectively acknowledged, and that the recording of the same, according to the provisions of the Code of 1851, § 1211, imparted no notice of its contents to the respondent. Wickersham v. Reeves and Miller, 1 Iowa 413 ; Crawford v. Burton, 6 Ib. 476; Dessaume et al v. Burnett et al., 5 Ib. 95.

By § 2 of chap. 30, Laws of 1858, (Rev. 1860, § 2249,) it is declared that the acknowledgment of all deeds “ taken and certified previous to the taking effect of this act, and which have been duly recorded in the proper counties in this State, be and the same are hereby declared to be legal and valid in all courts of law or equity in this State or elsewhere ; anything in the several different acts or laws of the Territory or State of Iowa in regard to acknowledgments to the contrary notwithstanding.”

To accomplish the end evidently designed, the language *392 of this section is not so appropriate as might have been selected. Deeds defectively acknowledged, and even without an acknowledgment, are good between the parties to them. The acknowledgment, in the manner required by the law, is essential to admit the instrument to record and make the same notice thereof to third persons. If defectively acknowledged, and third persons have actual notice of their existence, they are bound by them. As to the parties to the instrument therefore, and those having actual notice of its execution, this statute was unnecessary. And to thus confine its meaning or purpose, as its strict letter would seem to require, would defeat the manifest intention of the legislature. The object was to cure defects and give validity to recorded deeds, as to third persons, though improperly aeknowleged. The old law was, that no instrument affecting real estate should be of any validity against subsequent purchasers for a valuable consideration, without notice, unless recorded in the office of the recorder of deeds and that it should not be deemed lawfully recorded unless it had been previously acknowledged or proved in the manner prescribed by the statute. Code of 1851, §§ 1211-12. In view of the many instruments admitted to record, acknowledged in a manner different from that prescribed by the statute, the act of 1858, was passed, attempting to cure these defects and to make the records thereof constructive notice of their contents the same as if the provisions of the Code had been strictly followed. Nor is the suggestion entitled to weight that the terms “ duly recorded,” found in the act of 1858, control and have reference to ¡those “ lawfully ” recorded under the sections of the Code’ábove cited. Such a construction would strip the curative act of all meaning. These words were only intended to declare that the deed defectively acknowledged must be recorded to give it the designed validity, and not that a deed “ lawfully ” *393 registered under the old law was valid. The latter bad this validity without any aid from this act.

What effect then, is this legalizing act to have. Is it unconstitutional, because it impairs the obligation of contracts; because it interfers with vested rights or because it makes binding and operative, as to third persons, a contract, which the prior law had, as to them, declared invalid? These questions are not discussed by counsel for appellant. 1 Digest U. S. 558, § 92.

Our conclusion is, that the act is not repugnant to the constitution upon the ground that it impairs the obligation of contracts. It validates, rather than otherwise, the contracts in question. Satterlee v. Matthewsow, 2 Pet. 380 ; Watson v. Mercer, 8 Ib. 88. But it is invalid upon the ground that as applied to this case, it interferes with vested rights. It appears from the bill and exhibits that respondent purchased the property, paid his money and received the sheriff’s certificate before the passage of the curative act of 1858; but procured the sheriff’s deed afterwards. If the purchase had been subsequent to the taking effect of this act, then he would be affected by its curative terms, and could not in any sense claim that it interfered with vested rights. By such voluntary purchase, with a knowledge of the law, he would stand in no better position than the parties to the deed. When he purchases and parts with his money, however, before, the legislature can not, by afterwards declaring the title of a third person valid, make it paramount, aud deprive such purchaser of all rights acquired under the'sheriff’s sale.

According to the view we take of the case, respondent could take advantage of the defect in defendant’s title by demurrer. The bill exhibits his title, and there is no averment that respondent had actual notice of the existence of the deed. It was essential to his title as agajnst third per *394 sons that he should either exhibit a good title or ayer such facts as affected respondent with notice of the deed defectively acknowledged. If he failed to do this, respondent could raise the question by demurrer without being required to deny such notice by answer, and complainant should state ■ affirmatively the equity of his case and it will not be presumed.

Reversed.