Opinion
(Decided 28 March, 1899.)
Mortgage, First and Second — Probate Before a Relative of the Mortgagor.
1. Probate and private examination taken before an officer are not invalid simply because he is related to the parties.
2. Such proceedings is not adversary, and is in the nature of declarations against the interest of the relatives making them.
FORECLOSURE OF MORTGAGE, tried before Allen, J., at Spring Term, 1898, of ROBESON.
(263) A. W. McLean for appellants.
Proctor McIntyre, and Shepherd Busbee for appellee.
The plaintiffs' mortgage was executed in 1884 and duly registered. An interlocutory decree of foreclosure thereon was entered in this action in 1890, but before sale made the defendants executed a second mortgage to Worth Worth, in 1897, who are made parties defendant and plead that they should be preferred in the decree of foreclosure by reason of the fact (which is admitted) that the justice of the peace who took the acknowledgement of Purcell, the mortgagor, and the privy examination of his wife, was the brother of Purcell. Whether this made the registration of the first mortgage taken upon such acknowledgment and privy examination void, is the vital question in this case, for if it did, no notice of the first unregistered mortgage, however full and explicit ( Quinnerly v. Quinnerly, 114 N.C. 145) would bind the second mortgagee, and (264) the interlocutory judgment of foreclosure was effective therefore only as between the parties thereto.
In White v. Connelly, 105 N.C. 65, Turner v. Connelly, ib., 72, and Freeman v. Person, 106 N.C. 253, it was held that by virtue of The Code, sec. 104 (3) the probate of a deed by a clerk of the court, though upon an acknowledgement and privy examination taken by a justice of the peace, is void, if the clerk or his wife is a party to the deed or a subscribing witness thereto.
Long v. Crews, 113 N.C. 256, holds that an acknowledgment and privy examination taken before a justice of the peace is a judicial, or at least, a quasi judicial act, and cites numerous cases where probate and registration were void because based upon an acknowledgment and privy examination before an officer who by reason of his locality had no power to take them. This was a defect apparent upon the face of the record. Long v. Crews went further and held that the same principle invalidated an acknowledgment and privy examination before an officer who was a party, trustee or cestui que trust in the deed. The decisions have carried the doctrine no further. Here, neither the probate nor the acknowledgment and privy examination was had before an officer who was either party, trustee or cestui que trust in the deed, and the justice of the peace and the grantors resided within the county in which the acknowledgment and privy examination were taken, as was provided by The Code, sec. 1246 (1), and if there had been defects in the last regard it was remedied by the curative acts (1891, ch. 12, and 1893, ch. 293) before the second mortgage was executed. Williams v. Kerr, 113 N.C. 306; Barrett v. Barrett, 120 N.C. 127.
There is no principle of law, nor precedent, which invalidates an acknowledgment and privy examination taken before an officer who has neither any interest in the instrument nor is a party thereto, simply because he is related to the parties. Such proceeding is (265) not adversary, and the acknowledgment and privy examination are in the nature of declarations against interest of the relatives making them. The persons claiming thereunder are strangers. Certainly an officer can administer an oath to a relative in an ex parte proceeding in which the officer is neither a party nor interested, and this is of no higher dignity. While propriety might discourage an officer taking acknowledgment and privy examination of instruments where the parties thereto are nearly related to him, there is no illegality attaching to his action.
The court below properly adjudged that in the decree of foreclosure the second mortgage must be subordinate to the first mortgage.
AFFIRMED.
Cited: Blanton v. Bostic, 126 N.C. 421; Land Co. v. Jennett, 128 N.C. 4; Martin v. Buffaloe, ib., 308; Piano Co. v. Spruill, 150 N.C. 169; Holmes v. Carr, 163 N.C. 123.