McAllister v. Purcell, 124 N.C. 262 (1899)

March 28, 1899 · Supreme Court of North Carolina

124 N.C. 262

J. A. McALLISTER, Receiver &c., v. CHARLES A. PURCELL and wife, MATTIE PURCELL.

(Decided March 28, 1899).

Mortgage, First and Second — Probate .before a Relative of the Mortgagor.

1. Probate and private examination taken before an officer are not invalid simply because be is related to tbe parties.

2. Sucb proceeding is not adversary, and is in tbe nature of declarations against tbe interest of tbe relatives making them.

Civil ActioN, for foreclosure of mortgage, tried before Allen, J., at Spring Term, 1898, of RobesoN Superior Court.

Tbe defendants executed tbeir land mortgage deed to tbe plaintiff, J. A. McAllister, receiver, on December 22, 1884, to secure an indebtedness therein mentioned. Tbe probate of acknowledgment of tbe mortgagors and privy examination of tbe feme defendant was taken before J. E. Purcell, Esq., a Justice of tbe Peace of Robeson County, wbo is a brother of defendant Charles A. Purcell. His certificate was adjudged by tbe Clerk to be in due form of law, and tbe deed was ordered to be recorded, and it was recorded December 23, 1884.

While this proceeding for foreclosure of this mortgage was pending, tbe defendants executed another mortgage on March 26, 1891, to Worth & Worth, to secure them a debt mentioned therein, on tbe same land embraced in tbe previous mortgage to tbe plaintiff. This second mortgage was duly proved and registered April 13, 1897.

On proper affidavit and order Worth & Worth were made parties plaintiffs to tbe action for foreclosure brought by McAllister, receiver, and filed tbeir complaint, asking for a foreclosure of tbeir mortgage, and tbat it be declared a first lien on tbe land included in botb mortgages, alleging tbat tbe probate of tbe first mortgage was invalid because taken before a Justice of tbe Peace, wbo was a brother of tbe mortgagor Charles A. Purcell. It was adjudged by tbe Court tbat tbe plaintiffs, Worth & Worth, have leave to foreclose tbeir mortgage, in subordination, however, to tbe prior mortgage of McAllister, receiver. It was further adjudged by tbe Court, tbat tbe motion of Worth & Worth to have tbeir mortgage, executed by tbe defendants, declared a prior lien on tbe lands therein set out, be denied.

To this ruling Worth & Worth excepted and appealed.

Mr. A. W. McLean, for appellants.

Messrs. Proctor & McIntyre and Shepherd & Busbee, for appellee.

Clare:, J.

Tbe plaintiffs’ mortgage was executed in 1884 and duly registered. An.interlocutory decree of foreclosure thereon was entered in this action in 1890, but before sale made tbe defendants executed a second mortgage to Worth & Worth, in 1897, who are made parties defendant and plead tbat they should be preferred in tbe decree of foreclosure by reason of tbe fact (which is admitted) tbat tbe Justice of tbe Peace wbo took tbe acknowledgment of Purcell, tbe mortgagor, and tbe privy examination of bis wife, was tbe brother of Purcell. Whether this made tbe registration of tbe first mortgage taken upon such acknowledgment and privy examination void, is tbe vital question in this case, for if it did, no notice of tbe first unregistered •mortgage, however full and explicit (Quinnerly v. Quinnerly, 114 N. C., 145) would bind tbe second mortgagee, and the interlocutory judgment of foreclosure was effective therefore only as between the parties thereto.

In White v. Connelly, 105 N. C., 72, Turner v. Connelly, Ibid, 72, and Freeman v. Person, 106 N. C., 253, it was held that by virtue of The Code, section 104 (3) the probate of a deed by a Clerk of the Court, though upon an acknowledgment and privy examination taken by a Justice of the Peace, is void, if the Clerk or his wife is a party to the deed or a subscribing witness thereto.

Long v. Crews, 113 N. C., 256, holds that an acknowledgment and privy examination taken before a Justice of the Peace is a judicial, or at least, a quasi judicial act, and cites numerous cases where probate and registration were void because based upon an acknowledgment and privy examination before an officer who by reason of his locality had no power to take them. This was a defect apparent upon the face of the record. Long v. Drews went further .and held that the same principle invalidated an acknowledgment and privy examination before an officer who was a party, trustee or cestui que trust in the deed. The decisions have carried the doctrine no further. Here, neither the probate nor the acknowledgment and privy examination was had before an officer who was either party, trustee or cestui que trust in the deed, and the Justice of the Peace and the grantors resided within the county in which the acknowledgment and privy examination were taken, as was provided by The Code, section 1246 (1), and if there had been defects in the last regard it was remedied by the curative Acts (1891, Ch. 12, and 1893, Ch. 293) before the second mortgage was executed. Williams v. Kerr, 113 N. C., 306; Barrett v. Barrett, 120 N. C., 127.

There is no principle of law, nor precedent, which invalidates an acknowledgment and privy examination taken before an officer wbo has neither any interest in the instrument nor is a party thereto, simply because he is related to the parties. Such proceeding is not advisory, and fhe acknowledgment and privy examination are in the nature of declarations against interest of the relatives making them. The persons claiming thereunder are strangers. Certainly an officer can administer an oath to a relative in an ex parte proceeding in which the officer is neither a party nor interested, and this is of no higher dignity. While propriety might discourage an officer taking acknowledgment and privy examination of instruments where the parties thereto are nearly related to him, there is no illegality attaching to his action.

The Court helow properly adjudged that in the decree of foreclosure the second mortgage must be subordinate to the first mortgage.

Affirmed.