Bunnell & Eno Inv. Co. v. Curtis

Decision Date18 December 1897
PartiesBUNNELL AND ENO INVESTMENT COMPANY v. CURTIS
CourtIdaho Supreme Court

MORTGAGE-DEFECTIVE ACKNOWLEDGMENT-MAY BE REFORMED.-If the acknowledgment of a married woman to a deed or other instrument is correctly made, but defectively certified, such certificate of acknowledgment may be reformed by judgment of the district court, under the provisions of title 6, chapter 3, of the Civil Code, so as to make the certificate correctly state the acknowledgment.

CIVIL PROCEDURE-TO SET ASIDE AN ERRONEOUS JUDGMENT NOT BY MOTION.-An erroneous judgment cannot be set aside on motion or application made more than six months after judgment; and when, on motion to set aside a judgment, it appears that the court had jurisdiction of the subject matter of the action and of the person of the defendant, the motion should be denied, however erroneous the judgment may be, the remedy of the aggrieved party being by appeal, and not by motion.

PRESUMPTIONS AS TO FINDINGS OF TRIAL COURT.-In the absence of showing to the contrary, it will be presumed that the trial court made all necessary findings of fact, or that such findings were waived.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed, with costs.

John T Morgan, for Appellant.

The mortgage not being acknowledged as the statute requires is absolutely void. The certificate of acknowledgment of a deed by a married woman cannot be corrected upon parol testimony. The following statutes govern and control the transfer of the real estate of a married woman: "Section 2922. No estate in the real property of a married woman passes by any grant or conveyance purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed in chapter 3 of this title, and her husband, if a resident of this state, joins with her in the execution of such grant or conveyance." "Section 2956. The acknowledgment of a married woman to an instrument purporting to be executed by her must not be taken unless she is made acquainted by the officer with the contents of the instrument, on an examination without the hearing of her husband, nor certified unless she thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution." Without such acknowledgment the deed is absolutely void and has no more vitality than so much blank paper. Its execution could be proved in no other possible way. (Devlin on Deeds, sec. 548 and cases there cited; Martin v. Dwelly, 6 Wend. 9, 21 Am. Dec. 245.) The deed of a married woman of her separate property, except it is acknowledged by her in accordance with the statute, is absolutely void. And her agreement to convey even with the consent of her husband, for the sale of her real estate is absolutely void, and courts of equity never enforce such a contract. (Leonis v. Lasserovitch, 55 Cal. 55, 56.) The deed of a feme covert is void, if it does not appear from the certificate of her acknowledgment that she was examined separate and apart from her husband. Stating that she voluntarily consented will not cure the defect, nor will the testimony of the officer be admissible to prove a separate examination. The latter point was decided in Watson v. Bailey, 1 Binn. 470, 2 Am. Dec. 462; Jourdan v. Jourdan, 9 Serg. & R. 268, 11 Am. Dec. 724. A deed can be reformed as against a man, because the acknowledgment is not a part of the execution, but as against a married woman, the deed cannot be reformed, because there would not be a free and voluntary execution of the same. An agreement to convey property duly signed and executed by a married woman cannot be enforced as against her in a court of equity. (McLeran v. Benton, 43 Cal. 467; Leonis v. Lazzerovitch, 55 Cal. 55; Livingston v. Kettelle, 1 Gilm. 116, 41 Am. Dec. 170.) Parol evidence will not be received to show that when a married woman made her acknowledgment she knew the contents of the deed and received money for executing it. (Barnet v. Barnet, 15 Serg. & R. 72, 16 Am. Dec. 518; Williams v. Cudd, 26 S.C. 213, 4 Am. St. Rep. 714, 2 S.E. 14; Knowles v. McCauley, 10 Paige, 342; Watson v. Bailey, 1 Binn. 470, 2 Am. Dec. 462; Russel v. Ramsay, 35 Ill. 363.) The judgment is void; therefore a motion to vacate and set it aside is the proper remedy and may be made at any time. (Chipman v. Bowman, 14 Cal. 157; Logan v. Hellegrass, 16 Cal. 200; Sanchez v. Carriaja, 31 Cal. 170; Murdock v. De Vries, 37 Cal. 527; Gille v. Emmons, 58 Kan. 118, 48 P. 569.)

S. L. Tipton and J. H. Richards, for Respondent.

If she did acknowledge it in the manner prescribed, but the officer makes a mistake in his certificate, are those who part with their money on such acknowledgment correctly taken, but defectively certified, remediless? No. Our legislature in its wisdom provides for just such an emergency by enacting section 2971 of the Revised Statutes of Idaho which says: "When the acknowledgment or the proof of the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the district court to obtain a judgment correcting the certificate." The certificate of acknowledgment of a married woman is not an essential part of the execution of a conveyance by her. Respondent contends that section 2498 of the Revised Statutes of Idaho prescribes the manner, and the only manner, in which a married woman can alienate her separate real estate by mortgage, or otherwise: 1. The instrument purporting to convey her property must be in writing; 2. Such instrument in writing must be signed by the husband and the wife; 3. Such instrument in writing signed by both husband and wife, must be acknowledged by her, upon an examination separate and apart from her husband. (Joseph v. Daugherty, 60 Cal. 358; Banbury v. Arnold, 91 Cal. 606, 27 P. 934.) The certificate of acknowledgment is not an essential part of the execution of a conveyance by a married woman. (Danglarde v. Elias, 80 Cal. 65, 22 P. 69; Banbury v. Arnold, 91 Cal. 606, 27 P. 934.) In conformity with section 2971 of the Revised Statutes, an action was commenced in the district court of Ada county, Idaho by respondent, an interested party to correct such certificate, and the district court rendered a judgment correcting such certificate, and the motion to vacate and set aside such judgment was made, alleging such judgment was void because such court had no authority to render such judgment, and this, in our judgment, is the real and only point raised by such motion. On the contention that the district court had authority to render such judgment, we cite the following: Johnson v. Taylor, 60 Tex. 269; Wedel v. Herman, 59 Cal. 507; Judson v. Porter, 53 Cal. 482; Killburn v. Fury, 26 Ohio St. 153; Grath v. Fort, 15 Lea (Tenn.), 683; Spencer v. Reese, 165 Pa. St. 158, 30 A. 722; Danglarde v. Elias, 80 Cal. 65, 22 P. 69. Can such defective certificate be corrected in the action to foreclose the mortgage? In answer we cite the following: Hutchinson v. Ainsworth, 63 Cal. 286; S. C., 73 Cal. 452, 2 Am. St. Rep. 823, 15 P. 82. Respondent contends that on motion to set aside a void judgment such invalidity must appear from an inspection of the judgment-roll only. (Jacks v. Baldez, 97 Cal. 91, 31 P. 899; Ray v. Ray, 1 Idaho 705; Purdy v. Still, 1 Idaho 216; Gamble v. Dunwell, 1 Idaho 268; Smith v. Sterling, 1 Idaho 128; Graham v. Linchon, 1 Idaho 780; People v. Dodge, 104 Cal. 487, 38 P. 203; People v. Temple, 103 Cal. 447, 37 P. 414; People v. Harrison, 84 Cal. 607, 24 P. 311.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

This action was commenced by the plaintiff to foreclose a mortgage. Judgment of foreclosure was rendered April 6, 1895. On February 3, 1897, the defendant Susan L. Curtis served notice of motion and statement of motion to set aside the judgment, for want of jurisdiction in the court to render said judgment, which motion was heard on February 26, 1897, and, by order of the trial court, overruled, from which order said defendant appeals.

The principal contention of the appellant is that the mortgage in question was void, for the reason that the acknowledgment thereto was not made and certified in the manner required by law. The certificate, or that part of it in question, is as follows: "And the said Susan L. Curtis, wife of the said Edward J. Curtis, having been by me first made acquainted with the contents of said instrument, acknowledged to me, on examination apart from and without the hearing of her husband, that she executed the same freely and voluntarily, without fear or compulsion or undue influence of her husband, and that she does not wish to retract the execution of the same." Said mortgage was acknowledged before Jonas W. Brown, notary public, November 13, 1892. The complaint alleges facts showing that said Susan L. Curtis acknowledged said mortgage in the manner required by law, and asked for a reformation of said certificate of acknowledgment. The judgment corrected or reformed the certificate, so as to make it conform to the facts. The appellant urges with much seriousness that said certificate of acknowledgment was void; that the certificate is a part of the mortgage, and cannot be reformed; that the acknowledgment is shown by the certificate to be void; and that, the acknowledgment being void, the mortgage was void; and that the court had no jurisdiction to reform the certificate of acknowledgment, or to render judgment foreclosing said mortgage.

Title 6 of chapter 3 of the Civil Code of Idaho covering, sections 2950 to 2976, inclusive, of the Revised Statutes, contains all of the statutory law of Idaho relating to acknowledgments of instruments both by...

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