Chattanooga Nat. Building & Loan Ass'n v. Vaught

• Decision Date: 09 May 1905
• Citation: 39 So. 215,143 Ala. 389
• Court: Alabama Supreme Court
• Parties: CHATTANOOGA NAT. BUILDING & LOAN ASS'N v. VAUGHT.

39 So. 215

143 Ala. 389

CHATTANOOGA NAT. BUILDING & LOAN ASS'N v. VAUGHT.

Supreme Court of Alabama

May 9, 1905

Appeal from Circuit Court, Jackson County; J. A. Bilbro, Judge.

"To be officially reported."

Action by the Chattanooga Building & Loan Association against John H. Vaught. From a judgment for defendant, plaintiff appeals. Affirmed.

J. E Brown and John T. Proctor, for appellant.

Virgil Bouldin, for appellee.

DOWDELL J.

This is a statutory action in the nature of ejectment. The defendant's plea was not guilty. The plaintiff's right to recover was based on a mortgage purporting to have been executed by the defendant and his wife. The land conveyed in the mortgage constituted the homestead of the defendant. The defendant offered evidence tending to show that the certificate of the wife's examination and acknowledgment was false, and that in fact no examination of an acknowledgment by the wife, as certified to, was ever had. The plaintiff offered evidence in rebuttal of this. This being the only defense, the plaintiff requested in writing the general affirmative charge, which the court refused.

If in fact there was no examination of the wife, and no acknowledgment by her, before the officer making the certificate of examination and acknowledgment, then such certificate is absolutely void for want of authority in law to make it; in other words, the officer was without jurisdiction to make the certificate. And this differentiates the present case from that line of cases beginning with Monroe v. Arthur, 126 Ala. 362, 28 So. 476, 85 Am St. Rep. 36, where the invalidity of the instrument was based on a disqualifying interest in the officer taking the acknowledgment. We have held that the act of an officer in taking such acknowledgment is in its nature a judicial act. The rule is that a judgment rendered by a court having jurisdiction of the person and the subject-matter is not open to collateral attack, though such judgment may for extrinsic cause or reason be declared void on direct proceedings; but the rule is different where the judgment is void for want of jurisdiction, whether of the person or subject-matter, in the court rendering it, and in which case it may be collaterally assailed. Watts v. Frazer, 80 Ala. 186; Mortgage Co. v. Peebles, 102 Ala. 241, 14 So. 656; Mortgage Co. v. Payne, 107 Ala. 578, 18 So. 164; 17 Am. & Eng Enc. Law (2d Ed.) p. 1046. In Monroe v. Arthur, supra, the...