60 N.W.2d 276
Caroline Messersmith and her nephew Frederick S. Messersmith each owned an undivided one-half interest in three sections of land in Golden Valley County, North Dakota, prior to May 7, 1946.1 On that date Caroline executed a quitclaim deed conveying her interest to Frederick, but the deed was not recorded until July 9, 1951.2 Between the execution and recording of this deed, Caroline executed an oil and gas lease to Herbert B. Smith, Jr. on April 23, 1951, which was recorded on May 14, 1951.3 On May 7, 1951, Caroline executed a mineral deed conveying an undivided one-half interest in the oil, gas, and other minerals to Smith for a consideration of $1,400, and this deed was recorded on May 26, 1951.4
Smith defaulted in the action.5 Seale claimed title as a purchaser without notice, actual or constructive, of plaintiff's claim.6 Caroline was 77 years old at the time and lived in Dickinson, while Frederick resided in Chicago.7 The land was not occupied as a homestead and was used for grazing by tenants.8
The mineral deed to Smith bore a notarial certificate of acknowledgment, but Caroline testified that no notary public appeared at her home and that she believed she was signing a royalty transfer.9 Smith testified that the deed was acknowledged, but the notary had no independent recollection of the event.10 After the transaction, Caroline wrote to Smith on May 26, 1951, offering to return the $1,400 and stating that she should have consulted her nephew, who was a half owner.11
The trial court found that the deeds were not procured through fraud or false representation.12 Frederick brought this statutory action to quiet title against Smith and Seale.13
Whether a mineral deed not actually acknowledged by the grantor is entitled to be recorded and to impart constructive notice under North Dakota recording statutes?14
Under North Dakota law, an instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the register's office with the proper officer for record pursuant to Section 47-1908, NDRC 1943. The deposit and recording of an instrument proved and certified according to the provisions of this chapter are constructive notice of the execution of such instrument to all purchasers and encumbrancers subsequent to the recording under Section 47-1945, NDRC 1943.15 Before a deed to real property can be recorded, its execution must be established by acknowledgment by the person executing the same under Section 47-1903, NDRC 1943. A certificate of acknowledgment regular on its face is presumed to state the truth, yet proof to overthrow such certificate must be very strong and convincing. Where in fact the grantor has never appeared before the officer and acknowledged the execution of the instrument, evidence showing such fact is admissible even as against an innocent purchaser for value and without notice.16
No. The mineral deed from Caroline Messersmith to Herbert B. Smith, Jr. bore a notarial certificate of acknowledgment stating that Caroline Messersmith appeared before the notary and acknowledged the instrument.17 Caroline Messersmith testified that no notary public appeared at her home and that she believed she was signing a royalty transfer rather than a mineral deed.18 The notary had no independent recollection of the acknowledgment.19
The second deed that was actually recorded on May 26, 1951, was never acknowledged by Caroline Messersmith in the presence of a notary.20 Because the deed was not duly acknowledged as required by statute, it was not entitled to be recorded and its recording imparted no constructive notice of its execution or contents to subsequent parties.21
A mineral deed not actually acknowledged by the grantor is not entitled to be recorded and does not impart constructive notice under North Dakota recording statutes.22
Whether a subsequent purchaser can obtain priority under the recording act based on a deed that was not entitled to record due to lack of acknowledgment?23
Every conveyance of real estate not recorded as provided in section 47-1907 shall be void as against any subsequent purchaser in good faith and for a valuable consideration whose conveyance first is recorded under Section 47-1941, NDRC 1943.24 The recording act protects only those subsequent purchasers whose title rests upon instruments that meet the statutory requirements for recording, including proper acknowledgment.25 A purchaser cannot obtain priority under the recording act when the deed in his chain of title was never entitled to record because it lacked the required acknowledgment.26
No. E. B. Seale received a mineral deed from Herbert B. Smith, Jr. on May 9, 1951, and recorded it on May 26, 1951, before Frederick Messersmith recorded his deed on July 9, 1951.27
Seale claimed status as a purchaser without notice of Frederick Messersmith's prior unrecorded quitclaim deed from Caroline Messersmith.28 The deed from Caroline Messersmith to Smith that formed the root of Seale's chain was never actually acknowledged and therefore was not entitled to be recorded under Section 47-1908, NDRC 1943.29 Because Seale's grantor conveyed no title and the recorded instrument failed to satisfy the acknowledgment prerequisite, Seale did not qualify as a subsequent purchaser in good faith entitled to priority under Section 47-1941, NDRC 1943.30
A subsequent purchaser cannot obtain priority under the recording act based on a deed that was not entitled to record due to lack of acknowledgment.31
Whether the certificate of acknowledgment is conclusive as to the fact of acknowledgment when the grantor had previously conveyed her entire interest in the property?32
The certificate of acknowledgment on a mineral deed, while presumed to state the truth, is not conclusive as to the fact of actual acknowledgment by the grantor.33 Evidence that the grantor never appeared before the officer is admissible even against an innocent purchaser for value and without notice.34 When the grantor had already conveyed her entire interest by an earlier unrecorded deed, a subsequent purchaser cannot rely on the facial regularity of the certificate to divest the true owner under the recording statutes.35
No. The mineral deed to Smith contained a certificate of acknowledgment in regular form reciting that Caroline Messersmith appeared before the notary and acknowledged execution.36 Caroline Messersmith had already conveyed her entire interest in the land to Frederick Messersmith by quitclaim deed on May 7, 1946, although that deed remained unrecorded until July 9, 1951.37 The evidence established that Caroline Messersmith did not appear before the notary for the second deed recorded on May 26, 1951.38 Because the certificate is not conclusive and the grantor possessed no interest to convey, the facial regularity of the acknowledgment cannot operate to give Seale priority over Frederick Messersmith's title.39
The certificate of acknowledgment is not conclusive as to the fact of acknowledgment when the grantor had previously conveyed her entire interest in the property.40