Kelsey v. Dunlap

Murray, C. J., delivered the opinion of the Court—Terry, J., concurring.

This was an action of ejectment. The evidence shows that on the 17th June, 1850, Edward J. Willis was in possession of the land in dispute, claiming it by title in himself, and that on the same day he mortgaged it to one Perry Keith; that on the 1st day of August, 1850, Willis executed a second mortgage to Charles Kelsey; Kelsey’s mortgage was recorded on the 5th of August, 1850, and Keith’s on the 16th of October, 1850. The acknowledgment of the mortgage to Kelsey does not state that Willis, the mortgagor, was either personally known to the officer to be the person who signed the same, or that the same was proved to the satisfaction of the officer. The defendants purchased under a foreclosure and sale of the Keith mortgage, the plaintiff under a mortgage to Kelsey.

The only question which arises upon this state of facts is, which mortgage was first duly recorded, if the defendants, then the legal title is in them, and the plaintiff cannot recover.

Our statute has provided what shall constitute the essentials of an acknowledgment, without which a deed or conveyance affecting lands is not entitled to record, and if recorded, imports [162]no notice whatever, and is as worthless for the purpose of notice as if it had never been transcribed on the books of the officer The acknowledgment of the mortgage to Kelsey is not sufficient in form or substance, and imported no notice to Dunlap. See Wolf v. Fogarty, July Term, 1856.

This, we think, disposes of the whole case, and renders it unnecessary to pass formally upon the other assignments of error, as we are satisfied from an examination, that the rulings of the Court below were correct, and that the regularity of the sale by the sheriff to Dunlap cannot be inquired into by a stranger, or impeached in a collateral proceeding.

Judgment affirmed.