Summary
holding an improperly witnessed mortgage invalid as against a subsequently recorded valid mortgage
Summary of this case from In re LepelleyOpinion
Decided June 3, 1931.
Mortgages — Defective execution — Only one witness — Section 8510, General Code — Mortgage binds mortgagors, but ineffective as to subsequent valid mortgage, when — Mortgage, apparently duly executed and recorded, presumed valid — Evidence — Positive statements of notary and witnesses as to signatures, carry great weight — Signatures in different ink, not conclusive of defective execution — Mortgagor's appearance and consent to sell, considered with evidence supporting valid execution.
1. Defective mortgage having only one witness, although recorded and valid as against mortgagors, held ineffective as against subsequent valid recorded mortgage to third person (Section 8510, General Code).
2. Mortgage apparently duly executed and recorded is presumably valid, and must be shown to be defective by preponderance of evidence.
3. Positive statement by notary or witnesses of inflexible rule never to sign instrument, unless parties signed in their presence, carries great weight.
4. That signature was apparently written with different ink was not conclusive that signatures were not duly witnessed, or that mortgage was not acknowledged.
5. Mortgagors' "appearance and consent to sell," filed in trial court, admitting execution of mortgage, must be considered with other evidence supporting valid execution thereof.
APPEAL: Court of Appeals for Coshocton county.
Messrs. Pomerene Pomerene, for plaintiff.
Messrs. Wheeler Ely, for defendants.
This case is presented to this court on appeal from the court of common pleas of Coshocton county.
On May 22, 1922, Rollie R. Hagans and Mary J. Hagans, his wife, who will be hereafter referred to as the mortgagors, executed a note for $3,000, payable to the Coshocton National Bank. This note was secured by a mortgage upon some 115 acres of land. This mortgage was executed and delivered by the mortgagors and placed of record by the bank on May 25, 1922.
On June 12, 1922, the mortgagors executed a note for $1,000, payable to Willard Hagans, brother of Rollie Hagans, and executed and delivered to Hagans a mortgage upon the same real estate as security for the loan. This mortgage was placed of record July 19, 1922. This mortgage was only witnessed by one witness and was therefore defective under the provisions of Section 8510, General Code, and invalid against others than the mortgagors. Amick v. Woodworth, 58 Ohio St. 86, 50 N.E. 437. To the same effect is Wright v. Franklin Bank, 59 Ohio St. 80, 51 N.E. 876.
In November, 1926, upon demand of the bank, $100 was paid upon the bank's mortgage and in May, 1927, in compliance with the demands of the officers of the bank, $400 more was paid upon the principal, and a new note and mortgage executed by the mortgagors for $2,500. It is perfectly manifest from all the evidence that this was a renewal of the unpaid balance of the original loan, and was so understood by all parties concerned. A rigorous effort was made by Willard Hagans to invalidate this last mortgage. The mortgage on its face was apparently duly executed and recorded. It therefore carries with it a presumption of validity, and in order to destroy its effect as a mortgage it must be shown to be defective by the contestors, and by a preponderance of the evidence.
The notary and witnesses testified that they had no independent knowledge or recollection of the incidents surrounding its signing and acknowledgment, but they all testified that they never affixed their signatures to any instrument as witnesses or as notary unless the parties were present and signed in their presence. This is all that could reasonably be expected under the circumstances, and a positive statement of an inflexible rule always adhered to by a notary or witness must carry great weight in the consideration of their evidence. The notary was not connected in any way with the bank when she testified, having removed to another city.
Something is also made of the fact that the signature appears to have been written with different ink. Even if this evidence be given full effect, we do not think it in any way conclusive that the signatures were not duly witnessed, or that the instrument was not legally acknowledged.
The mortgagors, in a filing in the common pleas court styled "Appearance and Consent to Sell," stated over their signatures: "Now come the Defendants, Rollie R. Hagans and Mary J. Hagans, and enter their appearance herein. Said defendants admit the execution of the notes and mortgages described in plaintiff's petition and consent that the lands described therein be immediately sold upon foreclosure proceedings, as prayed for in plaintiff's petition, and that the proceeds from such sale be paid into court, pending the determination of the issues set forth in plaintiff's petition."
This admission must be considered with the other evidence in support of the valid execution of the mortgage, and it is our conclusion that the mortgage of May 31, 1927, was a valid mortgage, properly executed.
It is unnecessary in our view of this case to pass upon many questions presented by counsel in argument and brief.
The mortgage to Willard Hagans, being defective, is ineffective as against the lien of the bank, evidenced by a valid mortgage upon the premises, although his mortgage is valid as against the mortgagors.
"A mortgage with but one attesting witness besides the mortgagee, or the acknowledgment of which was taken by him as a notary public, is not entitled to record, nor valid, though admitted to record, as against a subsequent properly executed and recorded mortgage." Amick v. Woodworth, supra, syllabus, paragraph 2.
While the matter is presented to the court de novo, in all fairness to the trial court it is proper to say that the defect in the Hagans mortgage was not discovered by counsel until after the decision in the court of common pleas.
It is our conclusion that the mortgage executed by Rollie R. Hagans and Mary J. Hagans on the 31st of May, 1927, is a valid lien upon the premises and entitled to priority over the mortgage of Willard Hagans.
A decree may be presented accordingly.
Decree accordingly.
HAMILTON and CUSHING, JJ., concur.
ROSS, HAMILTON and CUSHING, JJ., of the First Appellate District, sitting by designation in the Fifth Appellate District.