Messersmith v. Smith
60 N.W.2d 276 (1953)
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Rule of Law:
A recorded deed that contains a latent defect in its acknowledgment, such as the grantor not personally appearing before the notary, is not entitled to be recorded and thus does not provide constructive notice to subsequent purchasers.
Facts:
- Prior to May 1946, Caroline Messersmith and her nephew, Frederick Messersmith, were co-owners of a property in Golden Valley County.
- On May 7, 1946, Caroline Messersmith executed and delivered a quitclaim deed for her interest in the property to Frederick Messersmith.
- On May 7, 1951, Caroline Messersmith, who no longer owned an interest in the property, executed a mineral deed conveying a one-half mineral interest to Herbert B. Smith, Jr.
- After discovering a minor error in this deed, Smith tore it up and had Caroline Messersmith sign a corrected second deed the same day.
- The second deed was not properly acknowledged; Caroline Messersmith did not personally appear before the notary public, who instead purportedly took her acknowledgment over the telephone.
- The notary's certificate on the second deed, however, was complete and regular on its face.
- On May 9, 1951, Herbert B. Smith, Jr. conveyed his purported mineral interest to E. B. Seale, who was a purchaser for valuable consideration without actual knowledge of the prior deed to Frederick Messersmith.
- On July 9, 1951, Frederick Messersmith recorded the quitclaim deed he had received from Caroline in 1946.
Procedural Posture:
- Frederick Messersmith filed a statutory action in a North Dakota trial court to quiet title against Herbert B. Smith, Jr. and E. B. Seale.
- Defendant Smith defaulted.
- Defendant Seale answered, asserting his claim as a subsequent purchaser in good faith for a valuable consideration whose deed was recorded first.
- The trial court found that the deed to Smith was not procured by fraud and entered judgment in favor of the defendant, E. B. Seale.
- The plaintiff, Frederick Messersmith, appealed the trial court's judgment to the Supreme Court of North Dakota.
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Issue:
Does a defectively acknowledged deed, which appears valid on its face, provide constructive notice to a subsequent good-faith purchaser, thereby giving the subsequent purchaser's recorded deed priority over a prior unrecorded deed?
Opinions:
Majority - Morris, Chief Justice
No. A deed that was not actually acknowledged in accordance with statutory requirements is not entitled to be recorded, and its presence in the land records provides no constructive notice to a subsequent purchaser. The North Dakota recording statute protects a subsequent bona fide purchaser only if their conveyance is properly recorded first. For a deed to be recordable, its execution must be proven by a valid acknowledgment, which requires the grantor to personally appear before the notary. Here, Caroline Messersmith did not appear before the notary for the second deed to Smith; the acknowledgment was taken over the phone, which is invalid. Because the acknowledgment was invalid, the deed was not 'entitled to be recorded.' Therefore, its physical recording was a nullity and did not provide constructive notice to Seale. Without the protection of the recording act, Seale's claim fails, and the prior, unrecorded conveyance to Frederick Messersmith has priority.
Analysis:
This case establishes a strict rule regarding the effect of latent defects in the chain of title. By holding that a facially valid but improperly acknowledged deed provides no constructive notice, the court places the risk of such hidden defects on the subsequent purchaser who relies on the public record. This decision prioritizes the strict, substantive requirements of the recording statutes over the policy of protecting bona fide purchasers who rely on a seemingly clear record. It underscores that the 'fact of acknowledgment,' not just the certificate, is the critical element for a valid recording and the constructive notice that flows from it.
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