Clegg v. Eustace

• Citation: 237 P. 438,40 Idaho 651
• Parties: MARGARET E. CLEGG and PHILIP E. CLEGG, Wife and Husband, Respondents, v. M. H. EUSTACE and JANE M. EUSTACE, Husband and Wife, Cross-complainants and Appellants, and J. W. DOTSON and MRS. J. W. DOTSON, Whose True Name is BLANCH DOTSON, Husband and Wife, JOHN W. CUPPLES and JUANITA CUPPLES, His Wife, LUTHER J. MITCHELL and EDNA MITCHELL, His Wife, and JOHN W. CUPPLES and LUTHER J. MITCHELL, Copartners Doing Business Under the Firm Name and Style of CUPPLES MERCANTILE CO., BALES BROTHERS LBR. CO., W. W. EASLEY, and J. F. BALES, Defendants
• Decision Date: 27 April 1925
• Court: United States State Supreme Court of Idaho

237 P. 438

40 Idaho 651

MARGARET E. CLEGG and PHILIP E. CLEGG, Wife and Husband, Respondents, v. M. H. EUSTACE and JANE M. EUSTACE, Husband and Wife, Cross-complainants and Appellants, and J. W. DOTSON and MRS. J. W. DOTSON, Whose True Name is BLANCH DOTSON, Husband and Wife, JOHN W. CUPPLES and JUANITA CUPPLES, His Wife, LUTHER J. MITCHELL and EDNA MITCHELL, His Wife, and JOHN W. CUPPLES and LUTHER J. MITCHELL, Copartners Doing Business Under the Firm Name and Style of CUPPLES MERCANTILE CO., BALES BROTHERS LBR. CO., W. W. EASLEY, and J. F. BALES, Defendants

Supreme Court of Idaho

April 27, 1925

ACKNOWLEDGMENTS-PRESUMPTIONS-BURDEN OF PROOF-COMPLAINT-PLEADING EXHIBIT-MORTGAGES-ATTORNEY'S FEES-FORECLOSURE.

1. A certificate of acknowledgment, complete and regular on its face, raises a presumption in favor of the truth of every fact recited therein.

2. The burden is on the party attacking a certificate of acknowledgment to show its falsity.

3. A judgment will be affirmed where substantial evidence in the record, if uncontradicted, would support it.

4. In an action to foreclose a mortgage a complaint containing no description of the mortgaged lands, but having annexed to and made a part of it a copy of the mortgage with a full description of the land, is sufficient.

5. A mortgage, which is security for the payment of a note which provides for attorney's fees, is security for the attorney's fees.

6. Allegation in complaint as to attorney's fees held sufficient.

7. In a real estate mortgage foreclosure a defendant holding a mortgage determined to be junior to plaintiffs' may, in the same action, when an original party therein, have his mortgage foreclosed subject to the senior mortgage.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Appeal from a decree fixing priority of mortgages, foreclosing prior mortgage and refusing to foreclose junior mortgage. Affirmed in part, reversed in part, and remanded.

Case remanded, with instructions. Petition for rehearing denied.

S. Ben Dunlap, for Appellants.

A complaint is defective which does not contain an allegation setting out a description of the property sought to be foreclosed, and which does not contain an allegation that the mortgaged property is in the county, and there is therefore nothing to show that the property is within the jurisdiction of the court. (Campbell v. West, 86 Cal. 479, 24 P 1000; 27 Cyc. 1594.)

A complaint is defective which contains no allegation of an agreement in the mortgage sought to be foreclosed to pay attorney's fees, and the attorney's fees cannot be recovered unless the agreement to pay them is directly averred in the complaint, and attorney's fees are not a lien on the land sought to be charged unless secured by the mortgage. (Lee v. McCarthy, 4 Cal. Unrep. 498, 35 P 1034; Boob v. Hall, 107 Cal. 160, 40 P. 117; Avery v. Maude, 112 Cal. 565, 44 P. 1020; Frantz v. Idaho Artesian Well & Drilling Co., 5 Idaho 71, 46 P 1026; Brooks v. Forrington, 117 Cal. 219, 48 P 1073; Klokke v. Escailler, 124 Cal. 297, 56 P. 1113; Lowenthal v. Coonan, 135 Cal. 381, 87 Am. St. 115, 67 P. 324, 1033, 68 P. 303; Luddy v. Pavkovich, 137 Cal. 284, 70 P. 177; 27 Cyc. 1594.)

An exhibit to a pleading cannot supply the lack of necessary and material averments. (Hartford Fire Ins. Co. v. Kahn, 4 Wyo. 364, 34 P. 895; McPherson v. Hattich, 10 Ariz. 104, 85 P. 731; Malheur County v. Carter, 52 Ore. 616, 98 P. 489; Ahlers v. Smiley, 11 Cal.App. 343, 104 P. 997; Sweeney v. Johnson, 23 Idaho 530, 130 P. 997.)

A signature to a mortgage written by another is void unless authorized by writing. (C. S., secs. 5373, 6556, 7974, 7976; Thompson v. Burns, 15 Idaho 572, 99 P. 111; Folsom v. Perrin, 2 Cal. 603; Castner v. Richardson, 18 Colo. 496, 33 P. 163; Hall v. Wallace, 88 Cal. 434, 26 P. 360.)

The acknowledgment of the execution of an instrument cannot be proved in any other manner than by the certificate of the officer taking the acknowledgment. (1 C. J. 886, sec. 266; Forrester v. Reliable Transfer Co. , 59 Wash. 86, Ann. Cas. 1912A, 1093, 109 P. 312; Haden v. Westcott, 11 Conn. 129; Kerr v. Russell, 69 Ill. 666, 18 Am. Rep. 634; Solt v. Anderson, 71 Neb. 826, 99 N.W. 678; Rogers v. Pell, 154 N.Y. 518, 49 N.E. 75; Elwood v. Klock, 13 Barb. (N. Y.) 50; First Nat Bank of Harrisonburg v. Paul, 75 Va. 594, 40 Am. Rep. 740.)

Certificate of a notary is merely prima facie and can be contradicted by any evidence, direct or indirect. (20 R. C. L. 337, sec. 19; Moore v. Hopkins, 83 Cal. 270, 17 Am. St. 248, 23 P. 318.)

H. E. Wallace, for Respondents.

One acknowledging before a notary public the execution of an instrument to which his name is attached or written adopts such signature as his own. (First National Bank of Hailey v. Glenn, 10 Idaho 224, 109 Am. St. 204, 77 P. 623.)

Defendant and cross-complainant is estopped from denying validity of mortgage held by plaintiff, he having notice of the existence of plaintiff's mortgage at the time his mortgage was executed. (Gooding Milling & Elevator Co. v. Lincoln County State Bank, 22 Idaho 468, 126 P. 772.)

Plaintiff's complaint is sufficient. (Whitby v. Rowell, 82 Cal. 635, 23 P. 40, 382.) It is generally sufficient to copy the description in the mortgage or to refer to the mortgage, a copy of the same being annexed. (27 Cyc. 1594.)

In plaintiff's complaint the mortgage is not only attached to the complaint, marked Exhibit "A" and made a part thereof, but is referred to as being recorded in a certain book and page, records of Canyon county, Idaho, and the description in said mortgage shows same to be in Canyon county.

GIVENS, J. William A. Lee, C. J., Wm. E. Lee, Budge and Taylor, JJ., concur.

OPINION

GIVENS, J.

Margaret E. Clegg and Philip E. Clegg, respondents, brought suit against Mr. and Mrs. J. W. Dotson, and others, to foreclose a real estate mortgage alleged to have been given to Bales Brothers Lumber Company by the Dotsons and subsequently assigned to Margaret Clegg. After the Bales Brothers' mortgage was given the Dotsons executed and delivered another mortgage on the same property to M. H. Eustace, who, with his wife, appellants here, two of the defendants below, answered and by cross-complaint sought to have their mortgage foreclosed and it decreed that respondents' mortgage was null and void on the ground that J. W. Dotson did not sign respondents' mortgage but that his name was signed by Mrs. Dotson without his authority.

The court found that respondents' mortgage was valid and superior to appellants' and foreclosed it, refusing to foreclose appellants' mortgage. From such decree of foreclosure this appeal is taken.

Mr. Dotson was unable to read or write and Mrs. Dotson signed her own name and her husband's name in his presence and in the actual personal presence of the notary, therefore, Myers v. Eby, 33 Idaho 266, 193 P. 77, has no application. Mr. Bales was present at the time and place and testified that Mr. and Mrs. Dotson acknowledged the instrument as their voluntary act and deed and later Mrs. Dotson admitted, and it was not contradicted, that this instrument was turned over as part of the purchase price of the land received. Mr. Dotson testified in substance that he did not that morning authorize Mrs. Dotson to sign for him and he did not know there was a mortgage but knew there was a note. At most, there is only a conflict between the Dotsons' and Bales' testimony and the notary's certificate. The notary did not testify. Respondents' mortgage appears on its face to be complete, regular and duly acknowledged and certified by a notary public.

A certificate of acknowledgment, complete and regular on its face, raises a presumption in favor of the truth of every fact recited therein. (Baldwin v. Snowden, 11 Ohio St. 203, 78 Am. Dec. 303; Martin v. Evans, 163 Ala. 657, 50 So. 997; Bell v. Castelberry, 96 Ark. 564, 132 S.W. 649; Ford v. Ford, 27 App. D.C. 401, 7 Ann. Cas. 245, 6 L. R. A., N. S., 442; Mahan v. Schroeder, 142 Ill.App. 538; Id., 236 Ill. 392, 86 N.E. 97; Gray v. Law, 6 Idaho 559, 96 Am. St. 280, 57 P. 435; Roberts v. Roberts, 176 Iowa 610, 156 N.W. 399; Barbee v. Farmers' Bank of Polo, 240 Mo. 297, 144 S.W. 839; 1 C. J. 893; Bruce v. Frame, 39 Idaho 29, 225 P. 1024.)

The burden of proving a state of facts which will overcome the probative force of the certificate is upon the party assailing it and it seems to be the rule that the testimony of the party acknowledging the instrument is insufficient to overcome the force of the certificate. (Ford v. Ford, supra; Adams v. Smith, 11 Wyo. 200, 70 P. 1043, 41 L. R. A., N. S., 1178, note; 1 C. J. 894; Mather v. Jarel, 33 F. 366; Gray v. Law, supra.)

This court has held that one acknowledging before a notary public the execution of an instrument to which his name is attached or written adopts such signature as his own. (First National Bank of Hailey v. Glenn, 10 Idaho 224, 109 Am. St. 204, 77 P. 623.) The signature becomes his on a theory of adoption and not on the principle of ratification.

The trial court was clearly justified in finding that the Dotsons did acknowledge this mortgage and such finding will not be disturbed under the well-known rule. (Crumpacker v. Bank of Washington County, 38 Idaho 534, 223 P. 229; Syster v. Hazzard, 39 Idaho 580, 229 P. 1110.)

Appellants contend that the complaint herein is insufficient because it was not alleged therein that the property covered by the mortgage was in the county wherein suit was commenced, but that the description of the land and its location was only referred to, by incorporating the mortgage in the complaint as an exhibit attached to and made a part of the complaint, relying on Campbell v. West, 86 Cal....