Colburn v. Mid-State Homes, Inc., MID-STATE

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

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.

[289 Ala. 257]

Page 866

Bill Fite, Hamilton, for appellants.

R. A. Norred, Birmingham, for appellee.

[289 Ala. 258] 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 respondent Mid-State Homes, Inc., who is the appellee and was the sole party respondent 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

Page 867

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 [289 Ala. 259] 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.

Page 868

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 [289 Ala. 260] 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...