Wallace v. Moody

By the Court, Sanderson, C. J. This action was brought to recover certain lands in the City of San José, in the County of Santa Clara. The plaintiff alleges seizin in fee on the 7th of July, 1863, and entry and ouster by defendant on the same day. The answer denies the seizin of the plaintiff, but admits the possession of the defendant. The case was tried by the Court without a jury, and after the findings of fact and conclusions of law had been filed, the plaintiff moved the Court to set aside the conclusions of law (they being in favor of the defendant) and substitute conclusions in favor of the plaintiff. This motion was denied by the Court, and the plaintiff duly excepted. And immediately thereafter the plaintiff moved the Court for judgment upon the pleadings and facts, as found by the Court, in his favor as prayed in the complaint. This motion was also denied, and the plaintiff duly excepted. And thereafter the Court rendered a judgment in favor of the defendant.

It appears from the findings that on the 10th day of July, 1849, one Laban Coffin was seized in fee as owner of the premises in controversy, and that on that day he conveyed the same to one Richard B. Fitzgerald; and that before the institution of this action the plaintiff had, by mesne conveyances, acquired all the estate in said premises which passed by the deed from Collin to Fitzgerald. This deed was executed in the City of Baltimore, in the State of Maryland, and was acknowledged before the then Mayor of that city, who was not authorized by the laws of this State to take the acknowledgments of deeds. The deed, however, was recorded, or copied into the records of Santa Clara Countjr, on the 25th day of November, 1850, and has remained so copied from that time to the present. After this action was commenced, and after the defendant had filed his answer, he obtained a deed of the premises from Coffin, paying therefor the sum of one hundred dollars.

[391]The only questions presented for our determination are: First—Did the recording of the deed from Coffin to Fitzgerald impart constructive notice of its existence to the defendant at or before the date of his purchase from Coffin ? Second—If not, had the defendant actual notice ? We have not stated the facts bearing upon the latter question, because the conclusion to which we have come upon the former renders its consideration immaterial.

The only reason assigned why the recording of the deed from Coffin to Fitzgerald does not impart notice to subsequent purchasers, is found in the fact that the acknowledgment was not taken and certified by an officer authorized to do so under the laws of this State. And it is argued that this defect is not cured by the Act of the 30th of April, 1860, entitled “An Act supplementary to an Act entitled an Act concerning conveyances.” (Statutes of 1860, p. 357.) The first section of that Act provides as follows: . ■