Frostburg Mutual Building Ass'n v. Brace

Bartol, C. J., delivered the opinion of the Court. The material facts in this case are correctly stated in the appellant’s brief as follows: “On the 23rd day of March 1878, The Frostburg Lodge No. 49, Independent Order of Odd Fellows, an incorporated body, having become involved and unable to meet its obligations, conveyed to the appellees, Brace, Richmond and Hill, all of its property, for the purpose of sale and distribution amongst its creditors. “ Part of the property so conveyed was the Odd Fellows’ Hall at Frostburg, a large and valuable brick building standing in part upon a lot of ground owned' by the said corporation in fee, and in part upon a lot which the lodge held by an equitable title, and upon which the vendor McCulloh held a lien for a balance of purchase money. The former lot, embracing about three-fourths of the building, the trustees found to be incumbered by several mortgages, and in their judgment it became necessary before proceeding in the execution of their trust, to obtain from the Court a construction of the rights of the several mortgagees. In this view the several mortgagees concurred, and the bill in this case was filed by the trustees, and an amicable suit docketed.

The mortgagees having answered, and the case- being submitted on an agreed statement of facts, the decree appealed from was passed. “ The mortgage of the appellant was dated April 14th 1876, that of John L. Miller, December 11th 1876, and that of Henry Stevens, November 24th 1877. “ The Circuit Court decreed that these several mortgages are not valid legal conveyances, and that they can operate only as equitable mortgages, that as between themselves they take priority according to their dates; but at the same time decreed ' that the amount due upon the mortgage of the appellant, whilst it should be carved out of the fund, ahead of the mortgages of Miller and Stevens, ⁵¹⁰ instead of going to the appellant, should be set aside for the purpose of distribution amongst certain general creditors, who had become such subsequent to the appellant’s mortgage,’ ” &c. The question before us on this appeal is as to the effect and operation of the mortgage held by the appellant. It was executed by the corporation by Thomas Hill, its attorney duly appointed for that purpose under the seal of the corporation. The supposed defect in the instrument is in the certificate of acknowledgment which states that, “personally appeared Thomas Hill, Attorney, for The Frostburg Lodge, No. 49, Independent Order of Odd Fellows, and acknowledged the foregoing mortgage to be his act and deed.” The Circuit Court decided that this certificate is defective because it states that the deed was acknowledged by the attorney, not as the act of the corporation hut as his, that is Hill’s act.

The Code, Art. 24, sec. 8, sub-sec. 4, requires, that the certificate of acknowledgment shall contain “a statement that the grantor acknowledged the deed to he his act,-or made an acknowledgment to the same effect.” By sec. 28,