Opinion
8 Div. 660.
March 19, 1925.
Appeal from Circuit Court, Madison County; James E. Horton, Jr., Judge.
R. E. Smith and R. C. Brickell, both of Huntsville, for appellants.
Counsel argue for error in the decree, but without citing authorities.
Watts White, of Huntsville, for appellee.
The separate acknowledgment of the wife was not insufficient, because combined with the general acknowledgment. Russell v. Holman, 156 Ala. 433, 47 So. 205; Gates v. Hester, 81 Ala. 357, 1 So. 848; Abney v. De Loach, 84 Ala. 393, 4 So. 757; Middlebrooks v. Stephens, 148 Ala. 230, 41 So. 735; Davis v. Gerson, 153 Ala. 503, 45 So. 587. In the absence of allegations of fraud or imposition, the certificate of the notary cannot be contradicted; the taking of acknowledgments is a judicial act. Miller v. Marx, 55 Ala. 322; Downing v. Blair, 75 Ala. 216; Shelton v. Aultman, 82 Ala. 315, 8 So. 232; Butler v. Hill, 190 Ala. 576, 67 So. 260.
The separate acknowledgment of the wife to a conveyance of the homestead containing all the recitals of the statutory form (Code 1923, §§ 6845, 7883), is not rendered invalid because combined with the general acknowledgment of the husband and wife in one certificate. Russell v. Holman, 156 Ala. 433, 47 So. 205.
A literal compliance with the statutory form, while always to be favored, is not exacted. If each fact required to be shown by the certificate is certified in language clearly in substance and effect the same as the statutory form, it is sufficient. Gates v. Hester, 81 Ala. 357, 1 So. 848; Frederick v. Wilcox, 119 Ala. 355, 24 So. 582, 72 Am. St. Rep. 925; Davis v. Gerson, 153 Ala. 503, 45 So. 587; Middlebrooks v. Stephens, 148 Ala. 230, 41 So. 735.
The alleged defects in the acknowledgment in this instance are in this clause: "Came before me the said Lula Lee Markham, known to me to be the wife of the within W. A. Markham." The statute uses the words "within named" in identifying the parties. The certificate is construed as a whole and in connection with the conveyance. "Said Lula Lee Markham," otherwise shown as the person who "executed" the conveyance, and who acknowledged that she "signed" the same, is thus identified with the same certainty as by the words "within named." "Within W. A. Markham" can mean none other than "within named W. A. Markham." The omission of the word "named" renders it less grammatical, but no less certain. The certificate of acknowledgment to complainant's mortgage was, therefore, sufficient.
Taking and certifying an acknowledgment to a conveyance of lands is a judicial act. When the instrument and the parties are present before the officer, and they there enter upon the business of completing the execution of the instrument by taking the acknowledgment, the certificate of the officer is conclusive of all the facts he is required by law to certify, and cannot be impeached by parol testimony, except upon averment and proof of fraud to which the grantee was a party. Qualls v. Qualls, 196 Ala. 524, 72 So. 76; Parrish v. Russell, 172 Ala. 1, 55 So. 140; Orendorff v. Suit, 167 Ala. 563, 52 So. 744; Hayes v. Southern Home B. L. Ass'n, 124 Ala. 663, 26 So. 527, 82 Am. St. Rep. 216; Grider v. American Freehold Land Mtg. Co., 99 Ala. 281, 12 So. 775, 42 Am. St. Rep. 58; Moog v. Strang, 69 Ala. 98.
It is without dispute here that the notary public was called to the home of the mortgagors to take the acknowledgments, that the mortgage was there signed by the parties, and the certificate of acknowledgment made and signed by the notary.
There is no averment of duress or fraud upon the wife. The grantee is not charged with taking any part in the execution of the mortgage. Parol evidence, contradicting the certificate of acknowledgment, to the effect that the husband was present at all times, or that the wife was not asked whether she signed the mortgage of her own free will and accord, was inadmissible.
True, the rule is that a certificate of acknowledgment, made without jurisdiction of the party or subject-matter — that is to say when the party was never in the presence of the officer in connection with an acknowledgment of the instrument, or there was no signature thereto, as the subject of inquiry — may be impeached as a fabrication. Chattanooga National B. L. Ass'n v. Vaught, 143 Ala. 389, 39 So. 215; Qualls v. Qualls, 196 Ala. 524, 72 So. 76; Cheney v. Nathan, 110 Ala. 254, 20 So. 99, 55 Am. St. Rep. 26.
The point is made that the prime purpose of the separate acknowledgment of the wife is the ascertainment that the wife's signature is not the result of duress on the part of the husband, and therefore the officer could acquire no jurisdiction while the wife is in the presence of the husband. There is force in the argument. An officer is grossly disregardful of his solemn duty to see that his official certificate speaks the truth, if the wife is not in fact examined separate and apart from the husband, and proper inquiry made to ascertain whether the wife signs of her own free will and accord, without fear, constraint, or threats on the part of the husband. But the rule above stated is founded upon public policy, aims at the security of titles, has been often considered and firmly established in this state, and is in harmony with the current of authority. 1. C. J. p. 886, § 267, and notes.
No stronger reason can be given for impeaching the certificate in its recital that the wife was examined separate and apart from her husband, than for like proof that the wife did not acknowledge that she signed of her own free will and accord. Jurisdiction having been acquired, parol evidence cannot impeach any of the recitals of fact which the law requires to appear in the certificate, no fraud being alleged. Any other rule would open the door to all the evils at which the established rule is aimed, and render the official certificate of the officer of little practical value.
We find no fault with the decree holding the half interest of Nora A. Moore in the lands bound by the mortgage. The debt originated in a purchase-money mortgage, given to complainant and assumed by W. A. Markham and Nora A. Moore on their purchase of the lands. It appears the present mortgage came about in course of an arrangement to borrow money from the Federal Land Bank to make a payment on the debt, the complainant taking a second mortgage for the balance. To consummate this deal, Mrs. Moore deeded her half of the lands to W. A. Markham, who thereupon executed the first mortgage to the Land Bank, and second mortgage to complainant while the entire title was in him. Parol evidence of a prior or contemporaneous agreement to release Mrs. Moore's portion of the land cannot be admitted to contradict or vary the terms of the mortgage as to the interest conveyed.
The evidence, if admissible, taken in connection with the written memorials of the transaction, would not warrant a finding of anything more than a discharge of Mrs. Moore from personal liability. No decree over is sought against her.
The decree of the court below is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.