Cooper v. Hamilton Perpetual Building & Loan Ass'n.

• Decision Date: 26 September 1896
• Parties: COOPER et ux. v. HAMILTON PERPETUAL BUILDING & LOAN ASS'N.
• Court: Tennessee Supreme Court

37 S.W. 12

COOPER et ux. v. HAMILTON PERPETUAL BUILDING & LOAN ASS'N.

Supreme Court of Tennessee.

September 26, 1896.

Appeal from chancery court, Hamilton county; G. M. McConnell, Chancellor.

Bill by Stephen Cooper and wife against the Hamilton Perpetual Building & Loan Association to enjoin defendant from taking possession of the complainants' alleged homestead under foreclosure proceedings. From a decree of the court of chancery appeals reversing a decree in favor of complainants, complainants appeal. Affirmed.

Shepherd & Frierson, for appellants. Barton & Chapin and E. M. Dodson, for appellee.

WILKES, J.

The defendant building and loan association in this case claims title to certain premises under the foreclosure of a deed of trust executed by Cooper and wife to secure a debt due the association. The complainants claim homestead in the premises, and the bill is filed to secure the same, and enjoin the association from taking possession under their foreclosure proceedings. The theory of the bill is that the deed of trust which has been foreclosed was acknowledged before one E. Y. Chapin, a notary public, and that the acknowledgment is illegal and void, because the notary, when he took the acknowledgment of the husband and wife, was a stockholder and director in the association, and its attorney, and, being thus interested, he was incompetent to take the acknowledgment of any instrument made to or for the benefit of the association. The only question involved is whether an officer so interested is competent to take an acknowledgment, and whether this conveyance so acknowledged is valid, and passes the homestead of complainants. The chancellor was of opinion the acknowledgment was invalid, and the conveyance void as to the homestead, and so decreed, and defendant appealed, and assigned error. The cause was heard by the court of chancery appeals, and the decree of the chancellor was reversed, and complainants have appealed to this court, and assigned error raising the question before stated.

There is quite a conflict of authority and diversity of holding in the different states upon the question of whether the act of taking an acknowledgment to a deed or other instrument is a ministerial or judicial act. It has been held to be a ministerial act in the United States courts and in the courts of Arkansas, Georgia, Illinois, Kentucky, Maine, Massachusetts, Minnesota, New Hampshire, New York, Maryland, and Ohio, and in these states it is held that an officer may take acknowledgment though related or interested or a party. But it is held to be a judicial act in other states, to wit, Alabama, California, Iowa, Missouri, North Carolina, Pennsylvania, Virginia, West Virginia, Mississippi. The authorities are collated in 1 Am. & Eng. Enc. Law (2d Ed.) p. 489. In Tennessee the courts have held that the act is judicial or quasi judicial, and especially is this so as to the act when it involves the privy examination of a married woman. Rhea v. Isely, 1 Leg. Rep. 292; Shields v. Netherland, 5 Lea, 197. This holding is doubtless largely due to the fact that under our statutes originally acknowledgments were taken in open court, and with the formalities attending other judicial proceedings. This rule has, however, been relaxed until clerks and deputies and notaries may take acknowledgment out of open court, and even in foreign states, where this state has no judicial jurisdiction. Aside from the question whether the act is ministerial or judicial or both in its character, it is held, and properly so, that it is unwise and contrary to...