Colburn v. Mid-State Homes, Inc.

• Decision Date: 21 September 1972
• Docket Number: 6 Div. 935,MID-STATE
• Citation: 266 So.2d 865,289 Ala. 255
• Parties: Gertrude COLBURN et al. v.HOMES, INC., a corp.
• Court: Alabama Supreme Court

Page 865

266 So.2d 865

289 Ala. 255

Gertrude COLBURN et al. v.MID-STATE HOMES, INC., a corp.

6 Div. 935.

Supreme Court of Alabama.

Sept. 21, 1972.

Bill Fite, Hamilton, for appellants.

R. A. Norred, Birmingham, for appellee.

McCALL, Justice.

The chancellor's final decree denied complainants the relief prayed for in their bill of complaint.They appeal from the rendition of that decree.

The appellants, who are husband and wife, filed their bill in equity against the respondentMid-State Homes, Inc., who is the appellee and was the sole partyrespondent in the cause.The appellee is the assignee of Jim Walter Corporation, under a written assignment, dated September 7, 1967, of an installment promissory note and real property mortgage, executed to the latter corporation to secure the purchase price of a 'shell home.'The appellants executed the note and mortgage on August 25, 1967.

The bill charges that the 'mortgage is null, void, and of no effect, and complainants deny the due execution of said alleged mortgage.'The appellants contend that the agent of the Jim Walter Corporation, who closed the purchase transaction, never explained to them that it was a mortgage that they were executing before him or that he was a notary public engaged in taking their acknowledgments to the mortgage; that he falsely certified that they voluntarily executed the instrument; that it was not proper for him as an employee of Jim Walter Corporation to certify their acknowledgments; that the manner in which the certificate of acknowledgment was executed rendered it ineffectual to convey their homestead rights in the property; and that the actual value of the 'shell home' was greatly less than the amount of the indebtedness covered by the mortgage.

In their bill, the appellants pray for an order restraining foreclosure, for a cancellation of the mortgage, and for title to the real property described in the mortgage to be quieted in them.

The answer admits that the appellants own the mortgaged property, but own it subject to the appellee's rights as assignees of the unpaid note and security mortgage.The appellee denies the invalidity of the mortgage.

The mortgage and the acknowledgment thereto purport on their face to be in due form, complete and regular in all particulars, including the subscription to the mortgage by the appellants, and the certification of its execution by the notary public.

Each appellant admits having voluntarily signed before Jim Walter's agent, who is now shown to be a notary public, an instrument that they identified at the trial as the mortgage in question.However, they deny knowing at the time of signing that they were executing a mortgage or that the person before whom they signed was a notary public.The notary public handed the note and mortgage to the appellants separately, at different times and places, for the purpose of having them subscribe their names thereto, and, at his request each signed the mortgage in his presence.They asked no questions concerning the papers.The appellants admit that they were to pay 144 installments of money in consecutive monthly installments of $67.40 each as the purchase price, and the agent had told them the total purchase price of the house, though they did not recall it at the trial.They might readily have calculated it from information they had by multiplying the number of installments by the amount of each monthly payment.There was testimony by appellant Colburn that Jim Walter Corporation's agent said they wanted five acres as security and he thought he and his wife agreed to that.He further testified that before signing the papers a man came out and surveyed their property, though he could not say whether he paid for the survey or not.What the appellants considered they were signing on the occasion does not appear from the evidence.

After the appellants signed the papers presented to them, Jim Walter Corporation constructed them a house on the five acre tract conveyed by the mortgage.

There is no merit in appellants' contention that the mortgage is null, void, and of no effect.

An efficacious acknowledgment not only renders the instrument self-proving, if seasonably recorded, but it also imports a verity against which none can be heard to complain, unless it is for duress or fraud.It is a quasi-judicial, if not judicial, act of an officer, and his certificate cannot be questioned, if his jurisdiction was obtained, except on the grounds above noted.Vizard v. Robinson, 181 Ala. 349, 353, 61 So. 959;Morris v. Bank of Attalla, 153 Ala. 352, 357, 45 So. 219.In Ford v. Fauche, 272 Ala. 348, 351, 131 So.2d 852, 854, it is stated:

'* * * (W)hen a certifying officer acquires jurisdiction by having the grantor and the instrument before him, the resulting certificate of acknowledgment is conclusive of the facts therein stated in the absence of fraud or duress.Weldon v. Bates, supra(229 Ala. 169, 155 So. 560);Woolen v. Taylor, 249 Ala. 455, 31 So.2d 320. * * *'

To like effect, we find the following statement in Jemison v. Howell, 230 Ala 423, 426, 161 So. 806, 809, where the court said:

'* * * Moreover, upon the broad ground of public policy, it is the settled rule in this state that, given 'the presence of the officer for the purpose stated, the presence of the instruments themselves, the presence of the grantors for said purposes, and the signing of the papers then and there by them--the notary's certificates of the acknowledgment of the husband and the separate acknowledgment of the wife are not open to impeachment by parol evidence, no fraud or duress having been shown.'American Freehold Land Mortgage Co. v. Thornton, 108 Ala. 258, 19 So. 529, 530, 54 Am.St.Rep. 148;Qualls v. Qualls, 196 Ala. 524, 72 So. 76;Moore v. Bragg, 212 Ala. 481, 103 So. 452, 454.And in Grider v. American Freehold Land Mortgage Co., 99 Ala. 281, 12 So. 775, 42 Am.St.Rep. 58, it was said that this established rule may now be regarded as a rule of property which it would be unwise and unsafe to disturb.'

The situation presented in American Freehold Land Mortgage Co. v. James, 105 Ala. 347, 16 So. 887, is quite similar to that now before us.There it was admitted by James and his wife that the notary carried the mortgage first to the wife, who signed it at her home in the notary's presence.Subsequently, the notary carried it to the husband, and he also signed the mortgage in the notary's presence.There was no allegation of fraud or duress, but both swore that they made no acknowledgment of their signatures before the notary and that he did not ask them to make any.They merely signed the paper and handed it back to the notary.The court upheld the acknowledgment as being valid, and said:

'* * * She does admit she signed it in his presence.The officer had jurisdiction of the parties.He had the mortgage with him, and had jurisdiction of the subject-matter, as well as of the person, at the time and place, and certified to facts which he had authority to certify to, and which it was his duty to certify to.We are of opinion that, under the facts, the certificate cannot be impeached by parol evidence.Meyer v. Gossett, 38 Ark. 377;Johnston v. Wallace, 53 Miss. 331;Scott v. Simons, 70 Ala. 356 (352);Shelton v. Aultman, 82 Ala. 318, (315), 8 So. 232;Barnett v. Proskauer, 62 Ala. 486;Miller v. Marx, 55 Ala. 322;Grider v. (American Freehold) Mortgage Co., 99 Ala. 281, 12 So. 775;Griffith v. Ventress, 91 Ala. 366, 8 So. 312. * * *'105 Ala. at 350--351, 16 So. at 888.

To the same effect are the cases of Jinwright v. Nelson, 105 Ala. 399, 17 So. 91, andAmerican Freehold Land Mortgage Co. v. Thornton, 108 Ala. 258, 19 So. 529.

We know of no requirement that a notary public must explain to a mortgagor the nature or contents of a mortgage the maker is about to execute.If no duress or fraud has been exercised over the mortgagor, when he signs the mortgage, he acknowledges to the notary public his mental state--that he is informed of the contents of the instrument he is signing.The mortgagor is thereafter presumed to know what it was that he signed.It is well settled in this state that where a party, having the ability to read and understand an instrument, fails to do so, and signs it without reading it, he is bound unless fraud was practiced on him; he cannot avoid the obligations embodied in the instrument by pleading ignorance of its contents.Lester v. Walker, 172 Ala. 104, 55 So. 619;Birmingham Ry., Light & Power Co. v. Jordan, 170 Ala. 530, 54 So. 280;State Bldg. & Loan Ass'n v. Bradwell, 227 Ala. 606, 151 So. 689;Grady v. Williams, 260 Ala. 285, 70 So.2d 267.In such a case, ignorance of the contents is attributable to the party's own negligence.

In the instant case, it appears from the evidence that each appellant had ample opportunity to read the instrument in question and to become acquainted with its contents before signing it.The contention that duress or fraud had been practiced on appellants is not supported by the evidence, and it is not alleged that they were misled into believing that the instrument they executed was something other than a mortgage.Therefore, there is nothing from which we can infer that appellants' execution of the mortgage was other than voluntary.

The fact that the mortgagors did not know the official character of Gilbert as a notary public, or that he bore any official character, makes no material difference.In addition to the other known facts which led up to the signing of the mortgage, the mortgagors knew that Gilbert was to return with papers for them to sign and that their signatures would be required to those papers which would be presented to them.SeeJinwright v. Nelson, 105 Ala. 399, 17 So. 91.It was appellants' settled intention to execute those instruments, and they voluntarily did so.His authentication of their signatures in the acknowledgment was for the purpose of enabling subsequent proof of...