#### Frank A. Lemmer, Respondent, *v.*Clara E. Morison, Appellant, Impleaded with Sarah A. R. Cox.

*Mechanics’ Lien Law*— *conveyance improperly recorded —priority of a lien subsequently filed*— not *destroyed by the lienor’s knowledge of the convey anee.*

The Mechanics Lien Law (Laws of 1885, chap. 343, § 5) declares that the liens therein provided for shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of the filing of the notice of lien prescribed in that act.

On April 13,1898, a deed was recorded in the register’s office of Kings county which was acknowledged in the State of New Jersey before a notary public of said State; attached to it was a certificate of the clerk of the proper county in New Jersey, to the effect that the notary before whom the acknowledgment was taken was duly authorized to take the same. It appeared that at the time of the taking of the acknowledgment a notary public in the State of New Jersey possessed no legal authority whatever to take the acknowledgment of deeds.

*Held,*that the deed, being insufficiently acknowledged, had been improperly recorded; that, although a mechanic who filed a lien against the premises described in the deed on April 17, 1893, had constructive notice of the transfer of the pioperty, yet, under the statute, the lieyi would have, priority over the conveyance.

Appeal by the defendant, Clara E. Morison, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office *278of tlie clerk of tbe county of Kings on tlie 24th day of August, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term.

*James P. Philip*and *E.*Paymond, for the appellant.

*William L.*Snyder, for the respondent.

Present — Brown, P. J., Dykman and Pratt, JJ.

Judgment affirmed, with costs, on opinion of Bartlett, J., at Special Term.

The opinion of Bartlett, J., was as follows:

Bartlett, J.:

This is a suit to foreclose a mechanic’s lien. The plaintiff’s right to recover was disputed on the trial solely on the ground that the premises, upon which the work was done, were conveyed by the defendant Cox to the defendant Morison on April 12, 1893, while the lien of the plaintiff was not filed until April *17,*.1893.

The plaintiff meets this objection in two ways: *Pwst,*by attempting to show that the deed from the defendant .Cox to the defendant Morison is not to be considered as having been recorded on April 12, 1893, or prior to the filing of the lien, inasmuch as it was not entitled to be placed on record then; and, *secondly,*by offering proof tending to show that work was done upon the property, subsequent to the conveyance, with the consent of the grantee.

So far as the second point is concerned, I do not think the proof is sufficiently clear or satisfactory to warrant a finding that the defendant Morison consented to the subsequent prosecution of the work. It seems to me, however, that the plaintiff is entitled to prevail upon the first point. The Mechanics’ Lien Law declares that the liens therein provided for shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in the act. (Laws of 1885, chap. 342, § 5.)

The statute' makes the record of a deed essential to give it priority over a mechanic’s lien. This means a valid record. The deed of April 12, 1893, was acknowledged in New Jersey before a notary public. Attached to it was a certificate of the clerk of the county *279of Camden and clerk of tbe Circuit Court of New Jersey in said county in which said deed was acknowledged to the effect that the notary before whom the acknowledgment was taken was duly authorized to take the same, and to take and certify the acknowledgment and proof of deeds to be recorded in that State. The nncontradicted evidence before me shows, however, that at that time a notary public in New Jersey possessed no legal authority whatever to take the acknowledgment of deeds, that power being confined to the chancellor, commissioner of deeds, justices of the Supreme Corn!, masters in chancery, and judges of the Court of Common Pleas.

The deed, however, was actually copied into the books of the register of Kings county, and the defendants contend that the plaintiff thus having constructive notice of the actual existence of the conveyance, which was undoubtedly good as between the parties to it, the intent of the statute has been complied with, and that the deed should have priority over the lien. But the objection to this view is that it seems to be broadening the language of the statute to an unwarrantable extent. If correct, it would involve holding that a deed of which a mechanic had notice would be entitled to priority over his lien, even though such deed should *never*be recorded, and this in face of the express declaration that the lien shall be preferred to any conveyance not recorded at the time it is filed.

As these are matters of purely statutory creation and regulation, it seems to me that a strict adherence to the letter of the law is more conducive to justice than a looser construction with the uncertainties which it would necessarily involve.

That the so-called record of April 12, 1893, must be deemed wholly ineffectual seems to follow from the case of *Irving*v. *Campbell*(121 N. Y. 353) where a deed insufficiently acknowledged had been improperly recorded. It was held that that deed could not be read in evidence, and that a title resting upon such alleged record was unmarketable.

Under our statute, the proof or acknowledgment of deeds, when made in other States of the Union, may be made before any officer of such state authorized by the laws thereof to take the proof and acknowledgment of deeds, and when so taken and certified they shall! be entitled to be recorded in any county of the State. (Laws *2801893, chap. 123.) The statute in terms requires as a prerequisite to the valid record of a conveyance, not only that it shall be certified to have been proved or acknowledged before an officer authorized by the laws of the other State to take the proof and acknowledgment of deeds, but that the proof or acknowledgment shall actually have been *taken*by an authorized officer. In the present case the certificate was sufficient on its face, but the trouble is that it was .not true. The defendants subsequently recognized the questionable character of the acknowledgment, and proved the deed afterwards before a master in chancery, and had it recorded in the Kings county register’s office on June 29, 1893, but this was long after the mechanic’s lien was filed.