In Re Barnacle

623 A.2d 445 (1993)

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Nature of the Case

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Facts

On December 22, 1986, Sally E. Lapides (W) and her husband, Michael J. Barnacle (H), executed a promissory note for the purchase of property. The note was secured by a mortgage document that was intended and required to be executed jointly by H and W. By accident, the mortgage was not signed by W. The mortgage was recorded. On January 9, 1992, H and W filed a chapter-7 petition in bankruptcy. The trustee in bankruptcy is deemed to be a bona fide purchaser of the mortgaged property as of the filing of the bankruptcy petition. The United States Bankruptcy Court certified the following question of law. Whether the failure of one of two joint mortgagors to execute a mortgage document, which instrument is thereafter duly recorded in the appropriate land evidence records, gives constructive notice to a bona fide purchaser five years later? The trustee contends that because the mortgage lacks W's signature and the appropriate acknowledgment of the signature, the mortgage is defective and cannot afford constructive notice to a subsequent purchaser.