Blackman v. Hawks

• Decision Date: 30 September 1878
• Citation: 1878 WL 10071,89 Ill. 512
• Parties: CATHARINE BLACKMANv.WILLIAM E. HAWKS.
• Court: Illinois Supreme Court

89 Ill. 512

1878 WL 10071 (Ill.)

CATHARINE BLACKMAN

v.WILLIAM E. HAWKS.

Supreme Court of Illinois.

September Term, 1878.

WRIT OF ERROR to the Circuit Court of La Salle county; the Hon. EDWIN S. LELAND, Judge, presiding.

Mr. EDWIN N. LEWIS, and Mr. HENRY MAYO, for the plaintiff in error.

Messrs. BLANCHARD & BLANCHARD, for the defendant in error. Mr. JUSTICE WALKER delivered the opinion of the Court:

Plaintiff in error was the owner in fee of the land in controversy, and was the wife of William Blackman. On the 6th day of September, 1871, he negotiated a loan of $1200 from defendant in error, who resided in the State of Vermont. Tillson acted as agent of defendant in making the loan. To secure the loan, plaintiff in error and her husband executed a note and a mortgage on the land to defendant in error. On the 23d of March, following, Blackman negotiated a further loan of $1500, through Tillson, of defendant in error, and to secure the same, with his wife, gave a note and mortgage on the land. Having failed to pay the notes at maturity, by virtue of a power of sale contained in the respective mortgages, defendant in error advertised the land for sale on the 2d day of August, 1875, to raise the money for the payment of the notes. Plaintiff in error thereupon filed a bill to enjoin the sale. She alleged in her bill that she did not execute either of the notes or mortgages--that her signature was forged thereto. A temporary injunction was granted, but on a hearing the court dismissed the bill, and complainant prosecutes error to reverse the decree.

The only question in the case is, whether the signature is genuine, and whether plaintiff in error executed and acknowledged the mortgages. She denies that she ever signed or authorized any person to sign these papers, or that she ever appeared before the magistrate and acknowledged the mortgages, or either of them, and did not know, until June, 1874, that they purported to be so acknowledged. A witness also testified that he knew her signature, and had seen her write, and that he was satisfied it was a forgery. Her husband testified that he executed the papers in the village of Marseilles, and says she was present at his store at the time, and signed some other papers, and he gave her the mortgages to sign, and supposed she had signed them. He says he thinks she did not know what she was signing, and was not present when he acknowledged them, and does not know whether she acknowledged the mortgages; that he intended to have her acknowledge them, but it rained, and he took the mortgages to the justice's office, and it is his impression that he left them there for her to acknowledge.

Opposed to this is the certificate of the magistrate, attached to the mortgages, indorsed at the time, and certifying that she came before him and acknowledged their execution. The officer testifies that the certificates are his, but said he did not recollect the transaction. He is, however, certain that Mrs. Blackman did acknowledge them, or he would not have made the certificates. There was, also, the signatures to the notes and mortgages, and her signature to the bill and injunction bond, with which the court below could make, and no doubt did make, comparisons.

It has always been held, that the certificate of the officer to the acknowledgment of a deed is conclusive to the same extent that is a record. It can, like a record, only be impeached for fraud. Anciently, a married woman could only release her dower or convey her real estate by record of court, and when the power to take acknowledgments was conferred on officers, there was the same, or nearly the same, presumptions in favor of their certificates as prevailed in favor of the record. The officer acts under the weight of his official oath, and is disinterested, and his certificate is entitled to great and controlling weight until overcome by clear and satisfactory proof. The evidence of the grantor will not overcome it. The question has been many times before this court, and it will be found these cases sust...