Council Bluffs Sav. Bank v. Smith

• Decision Date: 05 October 1899
• Parties: COUNCIL BLUFFS SAV. BANK v. SMITH ET AL.
• Court: Nebraska Supreme Court

59 Neb. 90

80 N.W. 270

COUNCIL BLUFFS SAV. BANK

v.SMITH ET AL.

Supreme Court of Nebraska.

Oct. 5, 1899.

Syllabus by the Court.

1. The homestead of a married woman cannot be incumbered by a mortgage which is not acknowledged by both the husband and wife.

2. The certificate of an officer having authority to take acknowledgments cannot be impeached by showing merely that such officer's duty was irregularly performed.

3. When the party executing a deed or mortgage knows that he is before an officer having authority to take acknowledgments, and intends to do whatever is necessary to make the instrument effective, the acknowledging officer's official certificate will be, in the absence of fraud, conclusive in favor of those who, in good faith, rely on it.

Appeal from district court, Madison county; Robinson, Judge.

Foreclosure suit by the Council Bluffs Savings Bank against J. M. Smith and others. Decree for plaintiff, and defendants appeal. Affirmed.W. E. Reed, for appellants.

S. O. Camp bell, Powers & Hays, and James I. Nichols, for appellee.

SULLIVAN, J.

This is an appeal from a judgment of the district court foreclosing two real-estate mortgages. One of the appellants is the wife of J. M. Smith, and the other is the wife of Albert V. Smith. J. M. and Albert V. were engaged in mercantile business in the city of Madison under the firm name of Smith Bros. They became indebted in the sum of $1,646.40 to the firm of Groneweg & Schoentgen, of Council Bluffs, Iowa, and on February 12, 1895, being requested to pay or secure the claim, promised, if their wives would join them, to execute mortgages on their respective homesteads. Thereupon negotiable notes representing the indebtedness were signed by the Smiths, and two mortgages to secure the same were made out. Each mortgage covered the family homestead of one of the parties. The instruments were handed to S. O. Campbell, a notary public, who called next day on the appellants to secure their signatures and acknowledgments. It is conceded that appellants signed the mortgages when presented to them by the notary, but it is denied that there was any formal acknowledgment of either instrument. The evidence is somewhat conflicting, but the trial court was justified in finding, and we presume did find, that each of the appellants executed the mortgage on her homestead voluntarily, with knowledge of Campbell's official character, understanding the purpose for which he was present, and realizing fully the probable consequence of her act. That the plaintiff, the Council Bluffs Savings Bank, purchased the notes in good faith, before maturity, and became the assignee and owner of the mortgages, was expressly admitted on the trial. It is claimed, and is doubtless true, that the appellants yielded reluctant consent to the giving of the mortgages, and it is possible that one of them was induced to consent because she believed her husband's statement that the creditors would take the property any way. But, however that may be, the fact remains that in the end the execution of each of the mortgages was a deliberate and voluntary act, the performance of which is authenticated in the manner required by law. About this there is no dispute. The action is not defended on the theory that the mortgages were made and delivered under circumstances that would render them ineffective, regardless of the homestead character of the mortgaged property.

The contention of the appellants, as we understand it, is that there was in fact no conventional acknowledgment of the mortgages,--no assent, in legal form, to the validity of the instruments,--and that they are therefore void, under the provisions of section 4, c. 36, Comp. St. 1897, which declares: “The homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered, is executed and acknowledged by both husband and wife.” It must, we think, be conceded that the evidence, if competent, is sufficient to show that neither of the appellants declared, in terms, to the notary that the execution of the mortgage was her voluntary act and deed. The circumstances...