Lovell v. Osgood

60 N.H. 71

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1880
• Status: Published

Opinion

Clark, J.

The certificate of the justice who administered the oath to the mortgagee was not made upon or appended to and recorded with the mortgage under which the defendant claims (Gen. Stats., a. 123, s. 10) ; and not being executed according to the statute it was not entitled to registration, and the record was inoperative as constructive notice to the plaintiff. The record of an instrument authorized by law to be recorded is constructive notice of its existence and contents to all parties interested; but the record of an instrument not entitled to registration is not constructive notice. It does not ordinarily affect a subsequent purchaser or incumbrancer unless he has such actual notice as renders his taking a subsequent conveyance fraudulent. Jones Mort., s. 533; Story’s Eq. Jur., s. 404 ; 2 Wash. Real. Prop. 572; Blood v. Blood, 23 Pick. 80; De Witt v. Moulton, 17 Me. 418. Actual notice of the unauthorized record is equivalent to actual notice of the conveyance. Hastings v. Cutler, 24 N. H. 481, 483. The case is not analogous to a deed acknowledged by one of two grantors, because in that case the deed is entitled to record as to the grantor acknowledging it. The defendant’s mortgage, although in fact duly executed by the parties, not being entitled to registration by reason of the defect’ in the certificate of the oath, is invalid against the plaintiff’s mortgage taken in good faith, for a good consideration, and without notice, actual or constructive, of the defendant’s prior mortgage. Gen. Stats., c. 123, ss. 10, 12; Hill v. Gilman, 39 N. H. 88; Stone v. Marvell, 45 N. H. 481; Gooding v. Riley, 50 N. H. 400.

Exception overruled.

Stanley, J., did not sit: the others concurred.