Opinion
Appeal from the Fifteenth Judicial District.
COUNSEL:
I. The complaint is ambiguous, unintelligible, and uncertain, in this, that it alleges the making of a note payable to Jansen, Bond & Co., to secure the payment of which the mortgage is alleged to have been executed, but sets out a mortgage made to Charles J. Jansen to secure the payment of a note wherein the said Charles J. Jansen is alleged to be the payee.
II. The Court erred in admitting the mortgage in evidence.
The premises were the homestead of the defendants at the time of the alleged execution, and the same formalities attach to their conveyance as though the premises were the separate property of the wife.
By the twenty-second section of the act concerning conveyances, it is made necessary that the wife be made acquainted with the contents of the instrument. By whom? Of course, by the officer taking the acknowledgment. He must certify to the fact of her being made acquainted; and in order to do so, he must impart its contents to her. He certifies to his own act in this respect.
The acknowledgment being essential to the validity of the instrument as a mortgage upon the homestead, the defect in the certificate could not be cured by parol proof.
III. The Notary was incompetent to prove the execution. He was directly interested in establishing the regularity of his acts, as well as supplying any omission in the matter or form of the acknowledgment, as he would be liable to plaintiff for any loss resulting from his official neglect.
IV. The evidence was insufficient to show that Mrs. McCahill executed the mortgage.
Brown & Graves, for Appellant.
Hereford & Williams, for Respondent.
JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. concurring.
OPINION
CROCKER, Judge
This is an action to foreclose a mortgage upon property claimed to be a homestead. The plaintiff recovered judgment, and the wife appeals. The wife demurred to the complaint, on the ground that it is unintelligible, ambiguous, and uncertain; the demurrer was overruled, and she assigns this as error. There is no foundation for the demurrer. The complaint is certain, intelligible, and clear of ambiguity in all its material allegations. It is objected that the certificate of the Notary Public, of the acknowledgment of the mortgage by the wife, is defective and insufficient, because it does not state that he, the officer, made her acquainted with the contents of the instrument. The certificate states as follows: " And the said Ellen McCahill, after being made acquainted with the contents of said instrument, acknowledged," etc. This is clearly sufficient. The statute does not require that the contents of the instrument shall be made known to the wife by the officer. It is sufficient if she is made acquainted with the contents by any person, that the officer knows that fact, and that it is duly certified to by him in the certificate of acknowledgment. It is also assigned as error that the Court erred in permitting the Notary to testify respecting the execution and acknowledgment of the mortgage. The wife filed an answer, in which she denied that she signed the mortgage or executed it under her hand and seal, or that she acknowledged having signed it. We see no valid objection to the competency of this witness to testify upon the question of the execution of the mortgage and all that occurred at the time of its acknowledgment. As we have shown, the certificate of acknowledgment was sufficient, and needed no evidence to support it. It is also objected that the proof of the execution of the mortgage by the wife was insufficient. The Notary Public testified that he asked the wife if that was her signature, and she said it was, but he did not see her sign it. The defendant called her daughter as a witness, who testified that she wrote her mother's name to the mortgage in her presence and at her request. This evidence is clearly sufficient. The admission made by her to the Notary was good evidence that it was her signature. (2 Phillips' Ev., C. H. & E.'s Notes, 501.) The name of the wife being written by her daughter in her presence and at her request, made it as much her signature as though it had been written by herself. (Ball v. Dunsterville, 4 Term, 313; Gardner v. Gardner, 5 Cushing, 483; King v. Longuor, 4 Barn. & Ad. 647; Frost v. Deering, 21 Maine, 156.)
Judgment affirmed.