A. & J. Dennistoun & Co. v. George Potts, 26 Miss. 13

Mr. Justice Fisheh delivered the opinion of the court. This was a contest in the vice-chancery court at Natchez, between the appellee, George Potts, and the appellants, A. & J. Dénnistoun & Co., as creditors of William Ferriday, seeking payment of their respective debts out of the same property, which, it is admitted, is insufficient to satisfy the claims of both creditors. The contest arose upon a bill filed by the appellee, to foreclose a mortgage executed by Ferriday and wife to secure the appellee in the payment of eleven promissory notes,' specified in the mortgage.

The property conveyed, consisting of a plantation, slaves, stock, and planting implements, is situate in Washington county. The mortgage was acknowledged before Henry Cook, a justice of the peace of Adams county;, and the acknowledgment was by him certified 'in the usual form, as a justice of the peace, under his common seal. In addition to which, the clerk of the probate court of said county certified under his proper seal of office, that the said Cook was a justice of the peace of said county, duly commissioned, and that full faith and credit were due to his official acts.

Upon this acknowledgment, thus certified, the mortgage was, on the 31st of May, 1838, registered in the office of the clerk of the probate court of Washington county.. The appellants interpose as a defence to the bill, a deed of trust executed by Ferriday and wife on the 7th of March, 1839, to Gillespie and Milligan, as trustees, for the purpose of securing the Messrs. Dennistoun & Co. in the payment, of the sum of $178,000 and accruing interest thereon.

This deed covers the same property embraced in the mortgage, and was acknowledged before the clerk of the probate court of Adams county, the acknowledgment by him duly certified, and the deed duly registered a few days after its execution in the proper office of Washington county. The point arising for adjudication upon this state of facts is, whether the registration of the mortgage is void on account of its having been acknowledged only before a justice of the peace of Adams county, whose power to take acknowledgments of deeds, it is insisted, is confined -to conveyances of property situate in his own county.

His power in this respect, prior ta 1836, was certainly circumscribed, as contended by the appel lants’' counsel; and the question, therefore, presents itself, whether by the legislation of that year, the power was so far extended as to give the justice of the peace of Adams county authority to take and certify the acknowledgment of the mort% gage conveying property situate in the county of Washington; By the statute passed the 21st of December, 1833, it is provided, amongst other things, that proof or acknowledgment of deeds of conveyance might be made before a notary-public, “whether the lands conveyed be situated in the same county or not.” It is also provided, that the notary should certify the acknowledgment under his seal of office.

Hutch. Code, 617. By the statute approved the 26th of February, 1836, it is declared, “ that all the powers theretofore belonging to notaries-public should, ex officio, be and vest in justices of the peace of the respective counties of this State.” It is also declared, that “ every justice of the peace may authenticate all his acts, instruments, and attestations, by his common seal of office.” Hutch. Code, 704.

The counsel for the appellants, in meeting the argument in favor of the authority of the justice of. the peace of Adams county, to take the acknowledgment of the mortgage in virtue of these statutes, have insisted, that the office of notary-public, not having been provided for by the new constitution of 1832, was abolished by its adoption; and there being no such officer in the State on the 25th of December, 1833, to be commanded or empowered by the statute above quoted, it was, as to this officer, wholly inoperative and void.

Hence it is said that the act of 1836 transferred to justices of the peace only such powers as belonged to notaries while in office prior to the adoption of the new constitution of 1832. Other questions of minor importance in this connection have been made, and will be stated and noticed at the proper time.

Conceding, for the sake of the argument, the correctness of the reasoning of the appellant’s counsel, let us examine the premises which counsel seem to have taken for granted, and ascertain whether it is true that the office of notary-public was abolished by the mere silence of the constitution on the subject, and whether, if not abolished, it was not at least possible for persons to have exercised the functions of the office on the 25th of December, 1833; for if so, it must be admitted that they could become the recipients of the power which the law proposed to vest in them.

The argument on this subject is, that the notary held his office during good behavior, and the constitution having made no express provision for a continuance of the office, it was abolished by what counsel-say was the evident intention and spirit of the 30th

section of the declaration of rights, which is in these words, to wit: “ No person shall ever be appointed or elected to any office in this State for life, or during good behavior; but the tenure of all offices shall be for some limited period of time, if the person appointed or elected thereto shall so long behave well.” This section, if taken as an isolated provision, will not sustain the position of counsel. It contains no intimation in regard to the discontinuance of any office whatever. No inference can legitimately be drawn from it, that the State intended to dispense with a single office then in existence.

It proposes to regulate only the period of time, which officers under the new government shall continue in office. The only change which it proposes to effect in the old government, relates, not to the abolition of its offices, but to the term which offices shall be held under the new government. The constitution itself had fixed the tenure, with perhaps a single exception, of the various offices which it had created.

As to all others, the tenure was a question for legislative action, the constitution only prescribing that all offices should be held for some limited period of time. 'But as this subject can be more appropriately considered in connection with the first, third, and fourth sections of the

schedule to the constitution, it is for the present'passed over. The first

section declares, “that all rights vested and liabilities incurred, shall remain the same as if this constitution had not been adopted.” Right.s could only remain the same, by receiving as ample protection from the new, as they had received from the laws and officers of the old government. This

section was in the nature of a pledge or guaranty made by the State, to continue in force such laws, and in office such officers, as might be necessary to afford full and ample protection to all rights and interests then recognized by the laws of the State, and a government may be said to recognize all rights which its laws and policy do not prohibit. The third

section declares, “ that the governor and all officers, civil and military, now holding commissions under the authority of this State, shall continue to hold and exercise their respective offices until they shall be superseded, pursuant to the provisions of this constitution, and until their successors be duly qualified.” This

section establishes, in the very clearest manner, the proposition already intimated, that it was the organization of 'the government which was in future to be effected, and not the constitution, which was to abolish the offices and displace the officers of the old government. It is a mistake to say, or to suppose, that the constitution alone abolished a single office or displaced a single officer. It only prescribed the mode in which this might be done. If no organization of the government had ever taken place under the new constitution, the government then in existence would have continued till the present time.

It is manifest, from the whole instrument, that only such offices as had been established by the old constitution, were to be abolished by the new organization. This is too apparent from the language, that all officers should continue in office until their successors should be duly qualified, to admit of controversy. A successor in office is one who performs duties of the same nature as those which were performed by his predecessor.

Officers for whom no successor had been provided, whose offices had not been created by the old constitution, but by subsequent legislation, and not abolished by the new constitution, would of course continue to hold their offices, unless the law creating them and prescribing their duties was in conflict with the provisions of the new constitution; for the fourth

section of the schedule, already noticed, declares in the most emphatic manner, “ that all laws now in force in this State, not repugnant to this constitution, shall continue to operate until they shall expire by their own limitation, or be altered or repealed by the legislature.” The office of noiary-publie was created by a statute passed the 10th of June, 1822. Revised Code, 263. The question here to be considered is, whether this law is repugnant to the provisions of the constitution; for if not, it is, by the express language of that instrument, continued in full force.

Experience had demonstrated, that for the convenience of trade and commerce, other officers than those provided for in the old constitution were necessary. When the first

section of the

schedule declared that rights should remain the same, it meant all rights and interests which had grown up under the system of laws then in force. If among these there were any, the preservation and protection of which required the action of a notary-public, it was clearly the intention of the convention framing the constitution, from the language employed in the third and fourth sections, that this officer should continue in office. We have clearly shown that the constitution alone did not abolish a single office of the old government.

There is, then, up to this point, no conflict between the law creating the office of notary-public and the new constitution. Did the government which was organized under the constitution affect this officer? This question is easily answered. Has the constitution conferred upon any other officer notarial powers, or so organized the new government as to render the performance of notarial services unnecessary, and at the same time to carry out its obligation to protect and preserve individual rights ?

If this can be shown, then the conflict between the law and the constitution will be established, and the law, therefore, shown to have been abrogated. What officer under the constitution is invested with the power to protest foreign bills of exchange, or to perform other duties peculiar to a notary-public, under the commercial law ? What language has it used by which it can be inferred that these duties have been dispensed with, and persons having important rights in the subjects named fully protected? These questions suggest their own answers.

There is no officer named in the constitution clothed with authority to perform these duties, and there is nothing in the constitution dispensing with their performance. They may be performed without entrenching upon the jurisdiction of any officer under the new organization, by a notary, to the same extent that they could under the old organization; and they are no less necessary to the protection of private rights under the one than under the other. Construing, then, the 30th

section in the bill of rights with the three sections in the schedule,- what do they all mean? What are the prominent objects they seek to accomplish ? As already remarked in regard to the 30th section, it sought but one object, and that was to reform the old system of government by limiting the tenure of offices. This was done to stimulate officers to a more faithful discharge of their duties, and to increase their efficiency by increasing their dependence upon the popular will for a continuance of the public confidence.

But is it to be argued, that because this principle was not immediately made operative as to every officer in the State, that the office itself was to be dispensed with, and all the important rights of the citizen falling peculiarly under its jurisdiction left wholly unprotected? Whether such an argument would or would not be sound, if confined exclusively to this section, it is certain that the constitution has provided against the contingency, and we need not, therefore, trouble ourselves to give any other reason.

The three sections quoted from the schedule, all look to one great object, and that was, to permit not a moment to elapse without a government completely organized, wdth such laws and officers as were essentially necessary to guard, in the most ample manner, all the great interests of society, whether relating to the persons, property, or vocation of individuals. These sections, taken either separately or as a whole, contain nothing in conflict with the 30th

section of the declaration of rights, which relates, not to the officers, which the State may employ in the administration of the law, but to the tenure of the offices, either created by the constitution, or thereafter by the legislature. It has reference alone to future appointments, or elections, under the new government. Indeed, it is not pretended that its language will admit of any other construction ; but that its spirit is different, and must, therefore, control its language. Now it is not exactly a safe or fair rule of construction to say, that a single

section in a constitution has a spirit peculiar to itself, which, if allowed to prevail, must mar other vital parts of the instrument, and render them nugatory. The constitution, as a whole, may be said to have a spirit, which may be appealed to, when necessary, for the purpose of giving harmony and efficacy to the various sections of the entire instrument; and it is only according to this spirit that it must be interpreted. But, returning for a moment to the consideration of the third

section of the schedule, declaring that all officers holding commissions under the authority of this State, should continue in office until their successors were duly qualified; and leaving out of view every other provision, the mode in which the officers of the old government were to be superseded, will at once suggest itself. We have said, that it was not the design of the convention to leave the State for a moment without a government completely organized.

This object could only be attained by continuing in office the officers of the old government, till the new organization should be accomplished; and hence it was the introduction of the successor into office that was to displace the officer of the old government. Where the office was not abolished, its duties not dispensed with, or transferred to some other officer, the office was of necessity to continue, and its incumbents to continue to perform their duties, till otherwise provided by the legislature, or the law creating the office expired by its own limitation.

This is not only the fair construction of the language employed in this section, but harmonizes with the first and fourth sections of the schedule, as well as with the primary object of the convention itself, which met to reform the government, and not to leave it in a state of anarchy. A government can only act and make its powers felt through its officers; and these must be sufficiently numerous, and clothed with powers sufficiently varied, to protect all the great interests of the community.

Government exists only for the protection of individual rights; and to afford at all times this protection, it must be in a state of complete organization. It is true, that this organization may be complete without providing for the office of notary-public; but it is not true, that in this age of trade and commerce, notarial services can be conveniently dispensed with.

Some officer in the State must be clothed with power to perform them; and, repeating what we have already said, the constitution not having abolished the office of notary, dispensed with the performance of notarial services, or transferred the duty to any other officer, we must suppose that the office of notary was left by the convention where it was when the convention met, — under the control of the legislature.

Thus viewing the question, we are of opinion, that the act of the 25th of December, 1833, was, in every respect, operative; that there was then nothing, either in the constitution or laws of the State, to prevent persons from holding the office of notary-public, and performing all the duties incident to the office. We come now to consider the other question, Whether the power conferred by this act on notaries, was, by the act of 1836, transferred to the several justices of the peace of this State.

The language of the act is, that “ all the powers heretofore belonging to notaries-public, shall ex officio be and vest in justices of the peace of the respective counties of this State.” This language does not admit of construction. Had notaries, prior to this act, the power to take the acknowledgment of a deed conveying property, in any county in the State? We have, we think, clearly shown that they had such power. The act of 1836 is not confined merely to duties of strictly a notarial character, but declares expressly, that “the powers belonging to notaries ” shall be transferred to justices of the peace.

We look always to the law, for the purpose of ascertaining the powers of any officer of the government. We look only to the act of 1833, for the purpose of ascertaining the particular power, about which the present controversy has arisen. We find that a notary could exercise it; and the act of 1836 transfers it to the justices of the peace of the respective counties of the State. Another objection urged is, that the justice of the peace, in certifying the acknowledgment, appears to have acted as a justice of the peace, and not as a notary-public; and that, therefore, the mortgage was illegally admitted to record.

The act of 1836 does not make, as supposed by counsel, the justice of the peace a notary-public. It only invests him with notarial powers. As a justice of the peace, he is required to perform the services which the law required notaries to perform. There is, in this respect, and to this extent, an accession to his powers as a justice of the peace, in which character he must act in performing his duties, and in certifying his official acts; and the law settles the question, whether the act done was within the scope of his'authority.

We are, therefore, of opinion, that the certificate was correctly made by the justice of the peace, in his official character as such. The next and last objection is, that the act of 1833 required the notary to certify the acknowledgment under his seal of office; and that the justice has only certified it under his common seal. The act of 1836 settles this point. It says, that the justice may certify all his acts under his common seal of office. His “common seal” is a “ scroll,” such as he employs in certifying his warrants, in issuing attachments and other process.

He is not required to keep or use any other seal. We are, therefore, of opinion, that the mortgage was legally admitted to record, and that its registration gave constructive notice, such as the law requires, to the parties claiming under the deed of trust. The mortgage debt is therefore entitled to prior satisfaction out of the property. The next point is, that the ten promissory notes, for the sum of $1,889.20 each, were given to secure the annual interest on the note for the sum of $18,892, at the rate of ten per cent, per annum; and that they are therefore void, having been given to secure usurious interest.

Upon this part of the case, Ferriday was examined as a witness. He says, that “ he purchased the Holly Wood” plantation and negroes, from John C. Potts; that the consideration of the purchase was the assumption on his part of all the debts of John C. Potts, upon which he, Fer-riday, was security, amounting to about $70,000; and also assumption by him to pay to George Potts, the amount due to him by the said John C. Potts, his brother, of about $18,890? with interest at ten per cent, per annum, being the same rate of interest which the said John C.

Potts had been paying to the said George Potts upon the said amount, or debt, previously.” The debt due from John C. Potts to “ George Potts, was in consideration of a loan of money from latter to former.” He shows that the transaction between John C. and George Potts was, by the law then in force; clearly authorized. He only substituted himself as the debtor in lieu of John C. Potts. This he had a right to do, in a legal transaction. The usury, therefore) in our opinion, is not established by the evidence.

The last point made is, that the proper parties were not before the court; and that the decree ought, for this reason, to be reversed. The mortgage was executed on the 25th of May, 1838. It conveyed to the complainant, Ferriday’s legal title to the property, and he had, at the time the deed of trust was executed, only an equitable estate; or, to say the most, a defeasible legal estate in the property. This he parted with by the deed of trust to Gillespie and Milligan. He was afterwards, in 1843, decreed a bankrupt, when his interest in the estate, under the decree, vested in blunt, the assignee in bankruptcy.

His interest extended only to whatever surplus might remain after satisfying the debts secured by the mortgage, and by the deed of trust. This interest, Hunt, in his answer to the bill, says he sold; but for what price, or to whom, is not stated. The purchaser,' whoever he may be, was not made a party to the bill, or decree, in the court below; and for this error, it is insisted, the decree ought to be reversed. Hunt, in his answer, says, that Ferriday’s interest in the property was sold, subject to all liens, to blank. This was no sale at all.

It shows no purchaser; and it was impossible for the complainant, under this showing, to make the supposed purchaser a party to the suit. The interest must, therefore, be treated as still in the assignee Hunt. Other reasons, equally satisfactory to us, might be given, why the decree, for this alleged error, should not be reversed ; but as we are all agreed upon the above point, it is believed to be unnecessary to state them. The decree, in all things, affirmed.

Note by Reporter. — This and the two succeeding cases ought to have appeared in the preceding volume, as the opinions were delivered at the April term, 1853, hut they were held up by the court, upon petitions for reargument, until the next term.