Alford v. Doe ex dem. First Nat. Bank

• Decision Date: 14 April 1908
• Parties: ALFORD v. DOE EX DEM. FIRST NAT. BANK OF GADSDEN.
• Court: Alabama Supreme Court

47 So. 230

156 Ala. 438

ALFORD v. DOE EX DEM. FIRST NAT. BANK OF GADSDEN.

Supreme Court of Alabama

April 14, 1908

Rehearing Denied July 3, 1908.

Appeal from City Court of Gadsden; John H. Disque, Judge.

Ejectment action by the First National Bank of Gadsden against W. J Alford. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Tyson C.J., and Simpson, J., dissenting.

Culli &amp Martin, for appellant.

Hood &amp Murphree, for appellee.

DOWDELL J.

This is a common-law action of ejectment. The defendant disclaimed as to a part of the land sued for and pleaded not guilty as to the remainder. The validity of the mortgage, the foundation of the title relied on by the plaintiff for a recovery, is presented for our consideration.

The land in question was the homestead of the defendant, who was a married man. The husband and wife both signed the mortgage in the presence of one W. W. Wester, a notary public, who attested the same as a witness. The undisputed facts are that at the time of the signing of the mortgage by the defendant and his wife, and the attestation by Wester as a witness, no certificate of acknowledgment of either the defendant or his wife was made by the said Wester, as provided for in section 2034 of the Code of 1896; but the mortgage, as signed by the defendant and his wife and attested by Wester as a witness, was then and there delivered to the mortgagee, Griffith. Seven days subsequent to the execution and delivery of the mortgage as above stated a certificate of acknowledgment by the defendant, and one by the wife on privy examination in due form as prescribed by the statute, purporting to have been made by the said Wester as notary public, were attached to the mortgage. These certificates bore date of February 21, 1892, which was 10 years prior to the date of the mortgage; the latter bearing date of February 21, 1902. Wester, who testified as a witness for the plaintiff, swore on his examination that the signature to the certificate looked like his, and he thought it was his, but that he had no recollection of making the certificate, and, if he did make it, it was made some time after the mortgage had been delivered to Mr. Griffith (the mortgagee), and that it was either mailed or sent to Mr. Griffith; that he (witness) did not "pin" it to the mortgage. The evidence is also undisputed that the defendant and his wife were never before the officer at any other time than on the day of the signing and delivery of the mortgage for the purpose of an acknowledgment of their signatures to the mortgage.

On the facts, the present case falls neither directly within the doctrine of the case of Monroe v. Arthur, 126 Ala. 362, 28 So. 476, 85 Am. St. Rep. 36, nor of Chattanooga B. & L. Association v. Vaught, 143 Ala. 389, 29 So. 215. In the former case, on the principle that the act of the officer in taking the acknowledgment and making the certificate was in its nature judicial, it was ruled that the certificate, like the judgment of a court, could not for extrinsic matter be collaterally assailed, as was attempted in that case, when valid on its face. In the latter, the Vaught Case, while the attack was collateral, the question was one of the officer's jurisdiction. Want of jurisdiction of the person by the officer rendered the judgment void, and open to be assailed collaterally as well as directly. The facts in that case are not fully set out in the reported volume, but on inspection of the original record we find that it was shown that the officer making the certificate never at any time had the party whose acknowledgment he certified to before him, or, in other words, never acquired jurisdiction of the party. The facts in the case before us present a question not involved in the two cases above mentioned; the question here being whether or not an officer, who attests a deed or mortgage as a witness, has authority under the law, after the execution and delivery of the conveyance to the grantee and at an indefinite time, to make and attach a certificate of the wife's acknowledgment on privy examination, without having again had the wife before him for that purpose. It is not denied that without a valid certificate of the wife's privy examination an acknowledgment, attached to the mortgage conveying the husband's homestead and made as required by the statute, the conveyance is absolutely void.

There is an expression in the case of Cox v. Holcomb, 87 Ala. 589-592, 6 So. 309, 13 Am. St. Rep. 79, to the effect that the officer taking the acknowledgment may, during his continuance in office, voluntarily correct his certificate or make a new one conforming to the statute, if the facts warrant. The principle stated, however, was not a question for decision in that case, and it has in later cases by this court been referred to as dictum, and disapproved as an erroneous statement of the law. In the case of Griffith v. Ventress, 91 Ala. 366, 8 So. 312, 11 L. R. A. 193, 24 Am. St. Rep. 918, where the certificate of the officer made and attached to the conveyance was defective, and the officer, without having the grantor before him for a reacknowledgment, attached a new certificate to the conveyance conforming to the statute, it was ruled that the second certificate was without authority of law, and therefore invalid. In that case, after a review of the authorities, and disapproving the principle stated in Cox v. Holcomb, supra, and declaring the same to be dictum, this court speaking through Coleman, J., said: "They [referring to the principles laid down as the law in that case] may work a hardship in some cases; but they afford a much safer protection to titles than to leave such important interests to the voluntary action and uncertain memory of the officers authorized by statute to take acknowledgments and make the certificates. If he can add to a certificate, why not subtract from it? If he can make a new certificate 4 years after the deed has been delivered and recorded why not 20 years after, and perhaps after parties and witnesses have died? If courts of law and equity are powerless to inquire into and determine the correctness of these certificates, and change them in accordance with the real facts, it is difficult to perceive why...