12 So. 775 (Ala. 1893), Grider v. American Freehold Land Mortg. Co. of London

Citation:12 So. 775, 99 Ala. 281
Opinion Judge:HEAD, J.
Party Name:GRIDER ET UX. v. AMERICAN FREEHOLD LAND MORTG. CO. OF LONDON, LIMITED, ET AL.
Attorney:D. S. Betthune and Tompkins & Troy, for appellants. G. L. Comer and Norman & Son, for appellees.
Case Date:April 04, 1893
Court:Supreme Court of Alabama
 
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Page 775

12 So. 775 (Ala. 1893)

99 Ala. 281

GRIDER ET UX.

v.

AMERICAN FREEHOLD LAND MORTG. CO. OF LONDON, LIMITED, ET AL.

Supreme Court of Alabama

April 4, 1893

Appeal from chancery court, Bullock county; John A. Foster, Chancellor.

Bill by Wiley M. Grider and wife against the American Freehold Land Mortgage Company of London, Limited, and the Loan Company of Alabama, to have certain mortgages executed by the complainants to the defendants annulled and canceled, and declared void, as to the homestead, which was a part of the property conveyed in said mortgages, and that the defendants be perpetually enjoined from selling said homestead under the power contained in the mortgage. Defendants' demurrer was sustained, and complainants appeal. Reversed.

The complainants allege in the bill that while they both signed the two mortgages, and while the certificate of acknowledgment of the justice of the peace recites the separate acknowledgment of the wife, and is in due form, as required by the statute, as matter of fact, Mrs. Mary R. Grider never made any acknowledgment before said justice of the peace, nor was she separately examined by said justice of the peace touching her signature to the mortgage, and never attempted to make any acknowledgment of her execution to either of said mortgages. The defendant the American Freehold Land Mortgage Company demurred to the bill, and assigned as grounds thereof misjoinder of parties complainant, in that the wife was not a proper party; that the bill does not allege that any fraud or undue influence was exercised over said Mary R. Grider, nor that the defendants participated in any fraud or undue influence, in securing the certificate of her separate acknowledgment, and that, therefore, the acknowledgment is conclusive as to the complainants; and that the complainants did not offer in said bill to do equity, by paying to the mortgagee the amount of the debt and interest thereon, which might be found to be due. Upon the submission of the cause upon the demurrers, the chancellor sustained the several grounds of demurrer, allowing the complainants to amend their bill within 30 days.

D. S. Betthune and Tompkins & Troy, for appellants.

G. L. Comer and Norman & Son, for appellees.

HEAD, J.

Though technically the averments of the bill proper would seem to lay the ownership of the homestead, upon which the mortgages mentioned are alleged to cast the clouds sought to be removed, in the complainants, W. M. Grider and his wife, jointly, yet, in connection with the exhibits, we think it is intended to aver that the lands are the property of the husband, solely. It is so treated in the arguments of counsel on both sides, and so we will consider it. It is a case, then, of the wife joining in a bill with the husband to remove a cloud from the title of the latter's homestead. The objection of misjoinder of complainants is raised by demurrer, and we are of opinion it is well taken, and that the bill cannot be maintained with Mrs. Grider as a party complainant. Having no title, legal or equitable, she has no standing in court to obtain such relief. Seaman v. Nolen, 68 Ala. 463. Vancleave v. Wilson, 73 Ala. 387, is not an authority to the contrary. It may be that if the title to the homestead is clouded, whereby the wife may suffer injury, by the probable loss of its use and enjoyment as a homestead, and the husband refuses to take the necessary steps to have the clouds removed, she will be permitted, by virtue of her incidental interests in the land, as wife and member of the owner's family, to come into equity to have the title of the husband made clear. Seaman v. Nolen, supra. But such is not the scope of purpose of this bill. The husband is now seeking all the relief she could ask, and improperly joins her with him in the effort to obtain that relief. The demurrer for misjoinder was properly sustained.

An important question arising in this case is what conclusiveness shall be accorded to the certificate of acknowledgment of the execution of a mortgage, made, in due form, by an officer authorized by the laws of this state to take and certify such acknowledgments? The bill avers that Mrs. Grider, the wife, although she signed with her husband the mortgage to the American Freehold Land Mortgage Company of London, Limited, and although there is appended to the mortgage the certificate, in due form, of a justice of the peace, certifying her due acknowledgment of its execution, yet in fact she never made the said acknowledgment before said justice, or any other acknowledgment before any officer; that the justice of the peace was not present when she signed the mortgage, and never took any acknowledgment from her with reference to the execution of the same; and that said certificate of acknowledgment is wholly untrue. There is in the bill no charge of fraud or collusion on the part of any one, in procuring the certificate; and upon the averments, as we find them, it must be assumed that the mortgagee took the mortgage, and parted with its money, in reliance upon the truth of the certificate, without any notice of its falsity. The complainants contend that they are entitled to show the fact alleged to avoid the mortgage of the homestead, even against a bona fide mortgagee without notice. The defendants contend that they are concluded by the certificate.

It must be regarded as settled by the great weight of authority that...

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