Opinion
No. 32335.
November 2, 1936.
1. ACKNOWLEDGMENT.
State, and not federal, statutes determine what officers are competent to take and certify acknowledgments which will entitle instruments to be admitted to record (Code 1930, secs. 2135, 2136).
2. ACKNOWLEDGMENT.
United States Commissioner was not "judge of United States court" within statute authorizing judges of United States courts to acknowledge instruments to be recorded, and hence deed acknowledged by such Commissioner was not entitled to be admitted to record in clerk's office (Code 1930, secs. 2135, 2136).
3. VENDOR AND PURCHASER.
Deed admitted to record without proper acknowledgment did not constitute constructive notice to subsequent purchasers for valuable consideration (Code 1930, secs. 2135, 2136).
APPEAL from the chancery court of Harrison county. HON. D.M. RUSSELL, Chancellor.
Gex Gex and O.J. Dedeaux, of Gulfport, for appellant.
There are only three sections dealing with this subject in our code, being the Mississippi Code of 1930.
The first section 745 provides that: "The judge of any court of record, the clerk of such court, the master in chancery, a member of the board of supervisors, a justice of the peace, notary public, or police judge of a city court or village, and any other officer of the state or of the United States, authorized by the law thereof to administer oaths, may administer oath and take and certify affidavits whenever the same may be necessary or proper in a proceeding in any court or under any law of this state."
In our opinion this section is broad enough to give a United States commissioner, who is certainly an officer of the district court of the United States, the authority to take oaths.
Section 2135 provides that the acknowledgment to admit a deed to record must be acknowledged by an officer competent to take said acknowledgment, and section 2137 provides the form of acknowledgment, etc., which does not touch the question at issue.
We submit that a United States commissioner, duly appointed by the United States district court of the United States sitting within the state, has full authority to take such acknowledgments, especially when they are taken within the district of the court appointing him.
U.S. Compiled Statutes, 1918, sec. 3259; Strong v. U.S., 34 Fed. 17; U.S. v. Allred, 155 U.S. 591, 39 L.Ed. 273.
The only authority that may be exercised by a United States commissioner under the Act of 1896 and of the Act of 1789, to which the later act refers and in many of its provisions adopts, is such authority as is expressly conferred by the statutes or by necessary implication. Among some of the acts enumerated in 66 C.J., sec. 8, page 3, that may be performed by a United States commissioner is the following: "to take oaths and acknowledgments."
It is submitted that the expression "any judge of a United States Court" as used in section 2136, Mississippi Code of 1930, is a general term and refers to a judge of any United States court. A United States commissioner holds court; most of his functions are judicial, hence a deed or other instrument proper to be recorded is properly acknowledged before such commissioner.
U.S. v. Maresca, 266 Fed. 713; Grin v. Shine, 187 U.S. 181; U.S. v. Elliott, 3 F.2d 496.
A United States commissioner is authorized and empowered by statute to sit in the capacity of judge in certain cases.
U.S.C.A., Title 16, sec. 415 and 10, and Title 38, sec. 497, and Title 27, sec. 11, and Title 18, sec. 641, and Title 28, sec. 844.
From consideration of the foregoing authorities, the conclusion is irresistibly borne that a United States commissioner is in fact a justice of the peace, a judicial officer.
Statutes pertaining to acknowledgments should be liberally construed.
Russ v. Wingate, 30 Miss. 440; Bernard v. Elder, 50 Miss. 336; Kennedy v. Price, 57 Miss. 771.
W.T. Moore, of Gulfport, for appellee.
Section 2136 of the Mississippi Code of 1930 specifies the persons and officers competent. This section does not empower a United States commissioner as such, to take acknowledgments to conveyances of lands in Mississippi.
The authority to take acknowledgments or proof of execution of an instrument rests only in those persons designated by statute.
1 C.J., Acknowledgments, sections 41 and 44.
The statutes in every instance designate and enumerate the officers who are authorized to take acknowledgments.
1 C.J., Acknowledgments, sec. 98; 41 Am. Dec. 196 and notes; 1 R.C.L., Acknowledgments, sec. 38; Shields v. Clifton Hill Land Co., 94 Tenn. 123, 45 A.S.R. 700, 26 L.R.A. 509; 1 Am. Jur., Acknowledgments, sec. 49.
Inasmuch as statutory authority is essential to the taking of acknowledgments, it is true, no doubt, that an acknowledgment taken by a person not so authorized is null and ineffectual for any purpose.
1 Am. Jur., Acknowledgments, secs. 59, 99; Interstate Savings, etc., Assn. v. Strine, 58 Neb. 133, 78 N.W. 377, 59 Neb. 27, 80 N.W. 45.
Therefore, since a United States commissioner is not one of the persons or officers expressly named in section 2136, Mississippi Code of 1930, he is not competent and cannot take an acknowledgment to a conveyance of lands in Mississippi.
A United States commissioner is neither a judge nor a court. He is an officer of the federal courts to whom is committed by federal statutes some of the duties which must otherwise be performed by the court itself or the judge thereof, and is in effect an adjunct of the court, not a judge thereof.
Chin Bak Kan v. U.S., 186 U.S. 193; U.S. v. Allred, 155 U.S. 591.
The appellant has cited in his brief several cases in support of his contention that a United States commissioner is a judge of a United States court, but none of the cases cited have gone further than to hold that a United States commissioner is a quasi-judicial officer.
We respectfully submit that a United States commissioner is not a judge of a United States court within the meaning of the term "any judge of a United States court" as contained in section 2136 of the Mississippi Code of 1930, or of the similar sections in the preceding Codes of 1892, 1906 and 1917.
Section 2136, Mississippi Code of 1930, with the exception of the words "or any judge of the County Court," therein for the first time included, is identical in wording with that of the corresponding section 2464, Code of 1892; section 2798, Code of 1906; section 2299, Code of 1917. The provision "any judge of a United States court" is included for the first time in section 2464 of the Mississippi Code of 1892.
It is respectfully submitted that when the several statutes above referred to were enacted that it was the intention of the Legislature to confer the right to take acknowledgments only upon such judges of the United States as were appointed in conformity with and under the provisions of Article 3, section 1, of the Constitution of the United States and who preside over the courts of the United States provided for therein.
In the interpretation of a statute words in common use are to be construed in their natural, plain and ordinary signification.
36 Cyc. 1114; Green v. Walker, 32 Miss. 650.
It is a very well settled rule that so long as the language used is unambiguous, a departure from its natural meaning is not justified.
36 Cyc., pages 1114-1115; Yerger v. State, 91 Miss. 862, 45 So. 849; Koch v. Bridges, 45 Miss. 247; Johnson v. So. Pac. Co., 196 U.S. 1, 49 L.Ed. 363.
A United States commissioner is neither a court nor a judge of any court, nor is he vested by law with any part of the judicial power of the United States, for the judicial power is vested in the supreme court and such inferior courts as the Congress may from time to time ordain and establish, and cannot be vested in a commissioner, who is neither made a court, nor empowered to hold a court in the constitutional sense.
In re Sing Tuck, 126 Fed. 386, 63 C.C.A. 199, 194 U.S. 161.
While courts may liberally construe the statutes relative to acknowledgments as to form and wording, such liberal construction does not, in my opinion, warrant the court to go to the extent of holding that an acknowledgment is valid when taken before an officer not specifically designated by the statutes as one competent to take the same.
On the 25th day of May, 1935, W.H. White executed a warranty deed conveying to the appellant, S.L. Smith, certain lots in the city of Gulfport. This deed recited a cash consideration of fifty dollars, and was acknowledged before J.W. Savage, United States commissioner for the Southern District of Mississippi, and was filed for record on the same day that it was executed. Three days later, for a valuable consideration, the said W.H. White conveyed the same lots to the appellee, L.K. McIntosh, by warranty deed acknowledged before a notary public; and this deed was duly filed for record.
On February 10, 1936, the appellant filed a bill of complaint, alleging ownership of the said lots by virtue of a deed of May 25, 1935, and praying for the cancellation of the later deed executed on May 28, 1935, as a cloud on his title. In his answer to the bill of complaint, appellee denied that he had actual knowledge of the prior deed when he purchased the said lots, and charged that the record of the prior deed, acknowledged before the United States commissioner, did not constitute constructive notice of said deed.
The cause was submitted to the court on an agreed statement of facts under which the only question presented for decision was, whether or not deeds acknowledged before the United States commissioners and admitted to record in this state constitute constructive notice to creditors and subsequent purchasers for a valuable consideration; and that is the only question presented on this appeal.
Section 2135, Code 1930, provides that instruments conveying land shall not be admitted to record in the clerk's office unless the execution thereof be first acknowledged or proved, and the acknowledgment or proof duly certified by an officer competent to take the same in the manner directed by law; and that any such instrument which is admitted to record without such acknowledgment or proof shall not be notice to creditors or subsequent purchasers for a valuable consideration.
The only officers competent to take and certify acknowledgments which will admit instruments to record in this state, are those expressly designated by section 2136, Code 1930, which reads as follows: "Every conveyance, contract, or agreement proper to be recorded, may be acknowledged or proved before any judge of a United States court, any judge of the Supreme Court, any judge of the circuit court, or any chancellor, or any judge of the county court, or before any clerk of a court of record or notary public, who shall certify such acknowledgment or proof under the seal of his office, or before any justice of the peace, or police justice, or mayor of any city, town, or village, or member of the board of supervisors, whether the property conveyed be within his county or not."
The federal statutes conferring authority upon United States commissioners to take acknowledgments generally, and decisions of federal courts recognizing such authority, are cited; but we must look to our state statutes to determine what officers are competent to take and certify acknowledgments which entitle instruments to be admitted to record so as to constitute notice to creditors or subsequent purchasers. The only United States officers mentioned in section 2136, Code 1930, as being competent to take and certify acknowledgments of instruments proper to be recorded in this state are judges of United States courts; and, unless United States commissioners can be classified as such judges, they have no authority to take such acknowledgments as would entitle instruments to be recorded in this state. In Chin Bak Kan v. United States, 186 U.S. 193, 22 S.Ct. 89, 46 L.Ed. 1121, it was held that a United States commissioner is a mere quasi judicial officer acting judicially in the discharge of his statutory authority, while in United States v. Allred, 155 U.S. 591, 15 S.Ct. 231, 233, 39 L.Ed. 273, it was said that such commissioners "have always been considered in the same light as masters in chancery and registers in bankruptcy, and subject to its [the court's] supervision and control."
In the case of In re Sing Tuck et al. (C.C.), 126 F. 386, 397, the court said: "A United States commissioner is neither a court nor the judge of any court, nor is he vested by law with any part of the judicial power of the United States, for the judicial power is vested in the Supreme Court and `such inferior courts as the Congress may from time to time ordain and establish,' and cannot be vested in a commissioner, who is neither made a court, nor empowered to hold a court in the constitutional sense. True, he is an inferior officer of the court, appointed by it by authority of Congress, with defined and circumscribed powers, but no part of the judicial power of the United States is vested in him, nor can it be."
Upon grounds not involving the above quotation, this case was reversed by the Circuit Court of Appeals, Second Circuit, 128 F. 592, and the latter court was reversed by the United States Supreme Court in 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917.
It thus appears to us that a United States commissioner is not a judge of a United States court within the meaning of the term "any judge of the United States court" as used in section 2136, Code 1930, and that the deed acknowledged before a United States commissioner was not entitled to be admitted to record in the clerk's office; and, having been admitted to record without proper acknowledgment, it did not constitute constructive notice to subsequent purchasers for a valuable consideration. The decree of the court below will therefore be affirmed.
Affirmed.