
    The Mutual Life Insurance Co. of New York, Resp’t, v. Lina T. Corey et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1889.)
    
    1. Deed—Acknowledgment—Notaby public.
    A deed executed in 1873 was acknowledged in Tompkins county before ■ a notary public who resided in, and was appointed to act as such in Schuyler county. Held, that such notary had no power to take the acknowledgment in Tompkins county; that the authority given by the Revised Statutes to notaries to exercise the duties of their office at any place within the state did not apply to their power to take acknowledgments.
    S. Same—Subsobibing witness.
    The notary’s name being subscribed only at the end-of the certificate, he could not be considered a subscribing witness.
    3. Cloud on title.
    Such deed was afterwards declared void in an action brought for that purpose. Thereafter plaintiff made a loan to the grantor and took a mortgage acknowledged in the same manner as the deed, and on foreclosure thereof bid in the premises. Pending the foreclosure the judgment declaring the deed void was set aside. Held that plaintiff’s mortgage was valid in equity; 'that the deed was a cloud on plaintiff’s title which it could maintain an action to remove.
    4. Same—Limitation.
    The action was brought within ten years from the giving of the mortgage. Held that it was not barred by the statute of limitations.
    
      5. Same—Evidence—Code Civ. Peo., § 835.
    Testimony of a notary who was the attorney who drew the deed that the acknowledgment was taken at a certain jilace does not necessarily involve a communication by his client to him in the course of professional employment, and is not inadmissible under § 835, Code Civ. Pro.
    Appeal from judgment in favor of plaintiff entered upon the decision of the Tompkins special term December, 1886.
    Action to remove cloud upon title.
    On November 15, 1873, William G. Corey, then being the owner of, and living upon, a farm of about 186 acres in the town of Ulysses, Tompkins county, executed a deed thereof to his wife and four minor children, being the three defendants herein, and Hattie L. Corey, reserving to himself a life estate therein. It is found by the court below that no valuable consideration for this deed passed between the parties. It was drawn by one John W. Osborn, and subscribed and sealed by the grantor, in his presence, at the dwelling-house on the farm. Osborn lived in Schuyler county, and at that time was a notary public, duly appointed, commissioned and authorized to act as such in the county of Schuyler. Corey, after he. signed the deed, and at his dwelling-house in Tompkins county, acknowledged the execution of it to and before Osborn, who then and there made and signed a certificate of acknowledgment in the usual form, having for its venue Schuyler county.
    The deed was not otherwise attested; there was no subscribing witness as such. To this deed there was afterwards attached the ordinary certificate from the county clerk of Schuyler county certifying to the oficial character of Osborn and the genuineness of his signature, and the deed was thereafter, and on November 19, 1873, recorded in Tompkins county.
    In April, 1877, William G. Corey commenced an action in the supreme court, against all of the grantees named in the deed, to set it aside on the ground that he executed it while very sick, believing he was about to die, without consideration and upon the belief that he was executing a will and not a deed. The summons in the action was personally served on all the defendants, and all appeared and answered, upon the merits, the children by guardian ad litem duly appointed.
    In May, 1877, the attorneys for all the parties stipulated to refer the case to a named referee to hear and determine, and upon this stipulation an order was entered, as of course, and without the direction of the court, referring the case to such referee. The case was tried before the referee, the attorneys for all the parties appearing, and the referee afterwards made and filed his decision, holding that William G. Corey, when he executed the deed, was mentally incompetent to execute the same, and did not know its purport, and that it was void. On May 21, 1877, a judgment was entered on this decision setting aside the deed and declaring it void.
    On the 12th September, 1877, William G. Corey borrowed of the present plaintiff $5,000, giving therefor his bond dated that day, and as collateral thereto he and his wife, Mary L. Corey, executed, sealed and delivered to the plaintiff a mortgage on the-said premises. This mortgage they acknowledged at their residence in Tompkins county before John W. Osborn, who then, lived in Schuyler county, and was a notary public for that county. The mortgage was recorded in Tompkins county October 20,1877. Default having been made in the payment of this mortgage, the plaintiff, on February 10, 1880, commenced in the supreme court an action to foreclose it.
    The mortgagors, William G. Corey and Mary L. Corey, were-made defendants, together with subsequent incumbrancers. The mortgagors defended, but the plaintiff recovered judgment of foreclosure against all the defendants November 9, 1881, upon which the premises were, on the 23d of December, 1881, sold to the-plaintiff and the usual referee’s deed on foreclosure given, which was recorded January 9, 1882. The sale was duly confirmed. There was, upon the sale, a deficiency of $3,296.24, for which 'a judgment was entered February 3,1882, against William G. Corey, and thereafter an execution thereon was returned wholly unsatisfied.
    William G. Corey and the grantees in the deed of November 15, 1873, were then living together as a family upon the premises, and so continued to about January 25, 1882, when the plaintiff entered into possession, and has since so continued.
    On the 24th of April, 1880, the defendants herein and Hattie L. Corey moved for an order setting aside the judgment of May 21, 1877, upon the ground that the order of reference was void, because entered by stipulation instead of by direction of court, as required by § 1012 of the Code of Civil Procedure. Upon this motion an order was duly entered, July 9, 1881, setting aside the said judgment and all proceedings subsequent to the joining of issue as to these defendants.
    As to Hattie L. Corey, she being then of full age, the payment by her of certain disbursements was made a condition to setting aside the judgment. These she did not pay.
    The present action was commenced July 29,1886. The special term held that the deed of November 15, 1873, was not properly acknowledged or attested, and was not valid as against plaintiff,, and directed judgment of cancellation.
    
      John J. Van Allen and William N. Noble, for app’lts; E. F. Babcock, for resp’t.
   Merwin, J.

It is claimed by the appellants that the deed of November 15, 1873, was properly acknowedged, although before a notary public outside of his own county. The argument is that the general provision of the Revised Statutes, 1 R. S., 8th ed., 379, 114, that notaries public may execute the duties of their office at any place within the state, applies to their power in taking acknowledgment of deeds. It was held to the contrary in Matter of Utica & Black River R. R. Co. v. Stewart, 33 How., 312, and in Matter of Booth, 65 id., 239.

By the Revised Statutes, it was provided that notaries public might be appointed in each of the counties of the state, that they should reside in the respective counties for which they should be appointed, and might execute the duties of their office at any place in the state, and certain powers were given to them, 8 E. S., 2645, which did not include the power to take affidavits or acknowledgment of deeds. By chapter 360 of 1859 it was provided that notaries public, in addition to their present powers,” should have authority to administer oaths and affirmations and take the proof and acknowledgment of deeds and mortgages “ in all the cases where the same may now be taken and administered by commissioners of deeds, and under the same rules, regulations and requirements prescribed to commissioners of deeds.” By chapter 508 of 1863 it was provided that “ notaries public shall have all the powers now conferred upon them by law, and shall also have power to take affidavits and certify to the same, and to take and certify the acknowledgment and proof of deeds and other instruments in writing in all cases where justices of the peace or commissioners of deeds may now take and certify the same.”

By chapter 703 of 1872, power was given to the notaries public of the counties of Mew York and Kings to act in either county. A similar right was given to any notary of several other counties, not including Schuyler, by chapter 807 of 1873, upon filing a certified copy of his appointment, with his autograph signature, in the clerk’s office of the counties other than where he resided.

By chapter 270 of 1884, any notary is authorized to act in an adjoining county, upon filing certain certificates in the clerk’s office of such county.

It is thus quite apparent that the legislature have acted upon the supposition that the general power originally given to notaries did not authorize them to exercise their subsequent powers in all parts of the state. Very clearly it was the intention of the act of 1859 to confer no greater powers than commissioners of deeds then had, and such powers were then by law limited to the county of the appointment. Neither that act or the one of 1863 conferred any general power like the one conferred originally on notaries, but it was limited to the cases in which commissioners of deeds or justices of the peace could act. It was not the general power to to take affidavits and acknowledgments, but a power to take “in the cases ” where the other officers could take. This necessarily had the same territorial limitation. We are, therefore, of the opinion that the notary of Schuyler county had no power to take the acknowledgment in Tompkins county. This is a question of jurisdiction ; the certificate, though in form correct, may be rebutted. Thurman v. Cameron, 24 Wend., 87: Sandland v. Adams, 2 How. Pr., 127.

. But it is suggested in behalf of the appellant that Mr. Osborn, the notary public, should be deemed a subscribing witness. He did not, however, sign as such. His signature is only as notary, and at the end of the certificate of acknowledgment. He did not subscribe his name to the deed as a witness of the sealing and delivery.

In Hollenback v. Fleming, 6 Hill, 303, a subscribing witness is defined to "be one who was present when the instrument was executed, and who at that time subscribed his name to it as a witness of the execution. A subscribing witness attests the delivery as well as the signing. In that respect it goes farther than the acknowledgment. We think the notary was not a subscribing witness.

The plaintiff is in a position to dispute the validity of the deed in question. It is a purchaser or incumbrancer within the meaning of the statute. 4 R. S., 8th ed., 2451, § 137. Assuming the plaintiff’s mortgage was defectively acknowledged, it was valid in equity, Payne v. Wilson, 74 N. Y., 348, and upon the foreclosure sale the plaintiff became a purchaser entitled to the benefit of the statute. The matter of notice was not material Chamberlain v. Spargur, 66 N. Y., 603.

After the judgment of May 21, 1877, was set aside as to the present defendants, the deed of November 15, 1873, was a cloud on plaintiff’s title, and it could maintain an action to remove it. Remington Paper Co. v. O'Dougherty, 81 N. Y., 474, 483.

That judgment not having been set aside as to Hattie L. Corey, she was not a necessary party defendant. Her rights, if any, would not be affected.

The right of action of plaintiff is not barred by the statute of limitations. The action was commenced within ten years from the giving of the mortgage. In Miner v. Beekman, 50 N. Y., 343, it was said that the owner of the fee had a right to bring an action to remove a cloud at any time during its existence.

The notary Osborn was called as a witness by plaintiff, and testified that the deed was acknowledged at the house of the grantor. ' This was objected to in time as inadmissible under § 835 of the Code. Mr. Osborn was an attorney, and was employed by the grantor to draw the deed. It is claimed that the testimony objected to necessarily involved a communication made by his client to him, in the course of his professional employment. The act of the attorney in drawing the deed is one thing; the act of the notary in taking the acknowledgment is another. Concededly an acknowledgment was taken. The witness in stating the place where it was taken, did not disclose any communication made to him in the course of his professional employment as an attorney.

The appellants claim the equities of the case are with them. This is not made clear. The court below, upon sufficient evidence, found that the deed of 1873 was without valuable consideration. The grantor in 1877 obtained a judgment setting it aside. Before this judgment was set aside, and while the title of William Gr. Corey was apparently clear and he was in possession, the loan is made from plaintiff and the mortgage given.

The plaintiff, as far as the case shows, had no actual notice of any irregularity in the recovery of the judgment. It is doubtful whether it had constructive notice, as the judgment was probably not void but voidable. We are, however, not required to pass upon the respective equities.

The imperfect deed had no effect as against plaintiff. _ It is not a question of rescinding an instrument but of invalidity under the statute. There was no estoppel through its covenants of warranty. Chamberlain v. Spargur, supra.

It follows the judgment must be affirmed, with costs.

All concur.

Judgment affirmed, with costs.  