U.S. Supreme Court
Parmelee v. Simpson, 72 U.S. 5 Wall. 81 81 (1866)
Parmelee v. Simpson
72 U.S. (5 Wall.) 81
1. Where a deed to A., though executed before a mortgage of the same property to B., is not delivered until after the execution and record of the mortgage, the mortgage will take precedence of it.
2. The placing of a deed to a party on record, such party being wholly ignorant of the existence of the deed and not having authorized or given his assent to the record, does not constitute such a delivery as will give the grantee precedence of a mortgage executed between such a placing of the deed on record and a formal subsequent delivery.
3. As a general thing, a ratification of a grantor's unauthorized delivery can be made by the grantee, but not when the effect would be to cut out an intervening mortgage for value.
Parmelee filed a bill of complaint against Megeath, Bovey, and one Simpson in the District Court for Douglas County, Nebraska Territory, sitting in chancery, for foreclosure and sale under a mortgage.
The bill set forth a mortgage executed by Megeath and Bovey, duly acknowledged on the 17th April, 1858, and duly recorded on the same day. It stated that Simpson claimed some interest in the mortgaged premises and prayed that he also be made a defendant.
The bill was taken pro confesso against Megeath and Bovey.
Simpson admitted the making and recording of the mortgage as alleged in the bill, but set up this defense:
"That he (Simpson) is the lawful owner of a portion of the premises and lands [defining it] described, and was such lawful owner at the time the mortgage and note were executed and for some time before; that he was so seized of said premises in fee simple on the 15th day of April, 1858 [two days before the mortgage] by virtue of a deed from Bovey, and that on the same day the deed was duly recorded, after having been duly acknowledged &c.,"
before one Sayre, a notary public. And that this defendant paid to the said Bovey a valuable and adequate consideration therefor, as is expressed in said deed.
"That some time in the month of August, A.D. 1860, he learned
for the first time that a pretended deed, purporting to have been made an executed by him to Bovey, conveying the premises, dated April 17, 1858, but without being duly acknowledged, was upon the records of the register's office, but that the same was a forgery; that he never executed such or any other deed conveying the premises; that he never received any consideration for the deed from Bovey, or anybody else; nor did he ever authorize anyone to execute the said deed for him."
A proved copy of the deed of April 17, 1858, set up, from Bovey to Simpson, was produced from the office of the recorder of deeds of the county, but not an original.
The testimony of Simpson himself showed the following facts: he had come from California to Nebraska, arriving there for the first time in his life, April 18, 1858 (three days after the date of the deed). He first there saw Bovey, who was an acquaintance of his, on the afternoon of that day. On the following day, the 19th, Bovey took him out to the land and showed it to him, stating that he had conveyed it to him in consideration of certain money previously received; showing Simpson, then, for the first time, the deed. Simpson had no knowledge of any intention on Bovey's part thus to convey the land further than a letter from him written at Chillicothe, Ohio, early in December, 1857; that he "intended conveying some property he had preempted." Simpson took the deed and put it in his trunk at his hotel, from which, in June, 1858, he missed it along with other papers. Bovey had been allowed access to the trunk to look for another paper. Simpson wrote to Bovey in the winter of 1860 about it, but received no answer. A diligent search failed to discover it.
The official index at the register's office stated that the deed had been indexed as received for record, April 15, 1858. But two witnesses, one of whom had been requested to attend to the drawing of the mortgage, and another who had gone with him as a friend to examine the records in the register's office, testified, in a positive way, that they had examined very carefully records and indexes on the morning of the 17th, and that nothing was then on record; that they chanroblesvirtualawlibrary
had made the examination carefully because in a previous transaction Bovey had been found "tricky and unreliable," and was "pretty well known for turning sharp corners." Sayre, the notary before whom the deed purported to be acknowledged, testified that he had not taken any acknowledgment of a deed from Bovey.
No deed from Simpson to Bovey, it seemed pretty clear, had ever been executed at all.
The district court decreed for the complainant, directing a sale. The supreme court of the territory reversed the decree, and on appeal from such reversal the case was now here. chanroblesvirtualawlibrary