Sitler v. McComas

Irving, J., delivered the opinion of the Court. The first question presented by this case is, whether a mortgage of land, lying in Harford County, executed by the -makers in Baltimore City, before a justice of the peace of Baltimore City, and recorded with suchjustice’s certificate of acknowledgment endorsed, but without the certificate of the clerk of the Superior Court of Baltimore City, that the justice taking the acknowledgment was a justice of the peace of the city, duly commissioned and sworn, has been effectively acknowledged- and recorded so as to take' precedence over a second mortgage, to which an unquestionably proper certificate of acknowledgment has been affixed and recorded, and is good against a subsequent purchase of the equity of redemption without actual notice of the existence of such mortgage. It is conceded that the appellant’s mortgage was executed before a justice who was such in Baltimore City, and a certificate of his being such was, four years after the record of the deed, procured and appended to the deed; but it was never recorded. But the counsel for appellant contends, that record of the certificate of the justice’s official character is not positively required by the statute, and was not essential to the full validity of the instrument against every body subsequently taking a lien on the property, or buying the same, if, in point of fact, the officer was what he professes to be, and it be afterwards proven, as it was done in this case.

The language of the Code on the subject, as found in Art. 24, section 3, is as follows: “If acknowledged within the State, but out of the county or city where the real estate or any part of it lies, the acknowledgment may be made before any justice of the peace for the county or city where ¹³⁸ the grantor may be at the time of acknowledgment: the official character of the justice being certified by the clerk of the Circuit or Superior Court under his official seal.” The mortgage sought to be given full effect, in Dyson vs. Simmons, 48 Md., 207 , was executed as the mortgage in this case was, before a justice outside the county where the land was, but was recorded without the certificate of the officer's official character as required by the Code in the section quoted. In that case the Court said the instrument was “ineffectually recordedand afterwards in the same case, the Court explains why it was ineffectual: “the recording in fact being abortive because of the failure to procure the certificate of the official character and qualification of the justice taking the acknowledgment.” This case would seem to be conclusive of this question, and leave it no longer open in this State ; and the decision rests on solid reason. If it were not so, the object of the registry laws would not be secured. The object of those laws was to preserve evidence of the contract, and to prevent fraud on creditors and purchasers.

Salmon vs. Claggett, 3 Bl., 125 . It was therefore the prime object of the registry laws to preserve evidence of the true state of the title. By record of a properly executed and acknowledged deed all that was necessary, under the old law antedating them, to perfect title (including livery of seizin,) was presumed ; and a copy of such deed, duly executed, acknowledged and recorded, is made, by the Code, Art. 37, section 58, evidence. It is evidence of execution, and all that is necessary to support the title that it gives or professes to give.

If any of the formalities essential to its validity as a deed do not appear in the deed, the natural presumption is, that they were omitted; else, being a part of it, by legal requirement, they would certainly appear to have been observed. Being wanting, the copy which is made evidence, would at once show their omission, and be conclusive against the va ¹³⁹ lidity of the paper. Indeed, in such case the copy is not evidence of title at all. By section 6 of Art. 24, of the Code, the certificate of acknowledgment is required to be attached to the deed and to he recorded with it.

By the third section of the same article, a certificate of the justice’s official character and qualification is expressly required as evidence of his right to take the acknowledgment,