Opinion
No. 30306.
January 2, 1933.
1. ACKNOWLEDGMENT.
Acknowledgment of lien which did not acknowledge delivery held insufficient to make recorded instrument constructive notice to execution creditor of existence of lien.
2. APPEAL AND ERROR.
That circuit court permitted alleged defective bond given on appeal from county court to be amended held not error (Code 1930, sections 28, 757).
APPEAL from circuit court of Newton county. HON. D.M. ANDERSON, Judge.
Homer Currie and Jos. H. Moss, both of Raleigh, for appellant.
The testimony shows that the defendant, Martin, purchased the automobile in question from a dealer, securing him with a lien or reservation of title in the property for the payment of the purchase price thereof, which lien and purchase price was later satisfied by and with the money advanced to Martin by the appellant; however the instrument of writing containing the lien or reservation of title was not assigned to Bassett, but Bassett instead took the lien in his favor as is shown by this record direct from Martin; then we submit that Bassett should be subrogated to the rights of the original seller of this automobile, and if this be true then the lien held by Bassett and upon which he bases his claim was not such an instrument as would have had to be recorded in the records of the county. But if the court should hold to the contrary then we say that it was such an instrument and such a recording as to furnish such notice as would serve to put the appellee on inquiry.
Whatever is enough to excite attention, or put a party on inquiry, is notice of everything to which such attention or inquiry might reasonably lead.
Baldwin v. Anderson, 60 So. 578; Parker v. Foy, 43 Miss. 260, 5 Am. Rep. 484.
The court below erred in overruling the motion of appellant to dismiss the appeal filed in said court in this cause and coming up from the county court on account of the insufficiency of the appeal bond, that is, because only one surety signed the appeal bond, and the time provided for taking appeal in said cause had passed.
W.W. James, of Newton, for appellee.
The acknowledgment of the instrument by the grantors thereof is fatally defective in that it does not recite "delivery" and is therefore not a recordable instrument, and is not constructive notice. No actual notice was alleged or proven by claimant. It is a well settled principle of law, and our courts have repeatedly held in construing section 2135 of Mississippi Code of 1930 that an acknowledgment that fails to recite delivery is not notice and therefore not a recordable instrument.
Ligon et al. v. Barton, 40 So. 555.
The bond we think was a good one and the lower court so held; however appellee in order to eliminate entirely the possibility of reversible error in the record, obtained permission from the court to file an amended or new bond, as authorized by section 74 of 1930 Code.
The Building Loan Association obtained a judgment against O.E. Martin and his wife, Mrs. Ora Martin, on April 16, 1931, and execution was issued thereon on the 8th day of June, 1931. The sheriff levied upon a certain automobile, of the value of two hundred and fifty dollars, in the possession of the Martins. R.R. Bassett filed a claim to the automobile based upon an instrument in writing constituting a lien upon the automobile in favor of Bassett, for four hundred dollars, dated July 1, 1929, and filed for record on April 7, 1931. The acknowledgment to this lien reads as follows:
"State of Mississippi, County of Jasper.
"Personally appeared before me, a Notary Public in and for the said state and county, O.E. Martin and Mrs. O.E. Martin, wife of the said O.E. Martin, who, on oath, says they signed the foregoing instrument of writing of their own free will and accord. Given under my hand and seal this 1st day of July, 1929.
"D.F. HITT, Notary Public."
The Building Loan Association are not shown to have had actual notice of this alleged lien, and the acknowledgment quoted above is insufficient to make the recorded instrument constructive notice, because of the failure to acknowledge delivery. An instrument is not effective until delivered.
This case was appealed from the county court to the circuit court, and the appeal bond was signed by only one surety. The statute (Code 1930, section 28) requires two sureties, unless the bond is made by a surety company authorized to do business in the state, and this was not done here.
When the case reached the circuit court, a motion was made to dismiss the case on account of the insufficient appeal bond, and motion was made to amend the bond, or to be permitted to substitute a new one to comply with the law. The court overruled the motion to dismiss, and permitted the bond to be amended, and this action of the court constituted one of the assignments of error.
Under section 757, Code of 1930, a trial judge has the right to permit an amendment to be made, consequently there was no error in so doing.
We find no error that would warrant a reversal, and the judgment will be affirmed.
Affirmed.