Davis v. Hale

Decision Date19 October 1914
Docket Number180
Citation170 S.W. 99,114 Ark. 426
PartiesDAVIS v. HALE
CourtArkansas Supreme Court

Appeal from Mississippi Chancery Court, Osceola District; Charles D Frierson, Chancellor; reversed in part, affirmed in part.

STATEMENT BY THE COURT.

In March, 1913, H. J. Hale, as trustee for W. P. Hale, and F. B Hale, as trustee for Osceola Cotton Oil Company, instituted an action in the chancery court against Hattie Davis, Frank Davis, Mattie Davis and Robert Davis, to foreclose a mortgage on real estate. The facts are as follows:

On the 5th day of November, 1909, Charles Davis and Hattie Davis his wife, executed a deed of trust on their homestead to H J. Hale, trustee, to secure a note due W. P. Hale for $ 300. The mortgage was signed by Charles Davis and Hattie Davis and the certificate of acknowledgment was filled out and the seal of the notary public attached to it. The seal contained the name of S. S. Semmes, notary public of Mississippi County, on it, but the signature of S. S. Semmes does not appear in the body of the certificate of acknowledgment, nor is it subscribed at the end thereof.

Charles Davis died November 7, 1911, and left surviving him a widow, Hattie Davis, and Frank, Mattie and Robert Davis, his minor children, and heirs at law.

On the first day of March, 1911, Charles Davis and Hattie Davis executed a deed of trust to F. B. Hale as trustee for Osceola Cotton Oil Company, a corporation doing business at Osceola in Mississippi County, Arkansas, to secure a note of $ 800. The mortgage was acknowledged before a stockholder and officer of the corporation to which the deed of trust was given. The debts secured by the above deed of trust were the debts of Charles Davis and were evidenced by promissory notes which were not signed by Hattie Davis. At the fall term of the chancery court, 1913, an interlocutory decree was entered of record. In it the chancellor found that Charles Davis and Hattie Davis, his wife, intended that the deed of trust given to H. J. Hale, as trustee for W. P. Hale, should embrace their homestead, but that by mistake of the draughtsmen other lands were described in it. It was decreed by the court that the description of the deed of trust should be reformed so as to embrace the homestead of Charles Davis. The chancellor also found that said deed of trust was given to secure a note of $ 300 executed by Charles Davis on November 5, 1909, and due one year after date, bearing interest at the rate of 10 per cent per annum from date until paid and that this note and no part of it had been paid except the interest up to November 5, 1911, and decreed that the deed of trust be declared a first lien on the homestead of Charles Davis.

The chancellor further found that Charles Davis and Hattie Davis, his wife, executed a second deed of trust to F. B. Hale as trustee for the Osceola Cotton Oil Company to secure a note executed to the said Osceola Cotton Oil Company for the amount of $ 800, due November 15, 1911, with interest at 10 per cent per annum from date until paid and that the note was signed by Charles Davis, and decreed that the deed of trust which was given to secure it be declared a second lien upon the homestead of Charles Davis, and that a master be appointed to determine the amount due on said note secured by said deed of trust. In the decree a master was appointed to ascertain the amount of money due on the note given to the Osceola Cotton Oil Company and was ordered to make his report at the next term of the court. At the February, 1914, term of the chancery court the defendants sought and obtained leave to file a bill of review on the ground of newly discovered evidence.

Thereafter Hattie Davis testified that she signed a deed of trust to H. J. Hale as trustee for W. P. Hale at her home in Mississippi County, seven miles from Osceola, but denied that she had ever acknowledged the same at any time or place. Subsequently a decree was entered in favor of the plaintiffs in which it was recited that the defendant, Hattie Davis and the minor defendants were all duly served with summons as required by law and that a guardian ad litem had been appointed for the minor defendants. The court further found that the deed of trust of Charles Davis and wife executed to H. J. Hale, trustee for W. P. Hale, was intended to embrace the homestead of Charles Davis and that by mistake of the draughtsman other lands were described in said deed of trust. The chancellor further found that said deed of trust was given to secure a note executed to W. P. Hale for the sum of $ 300 with interest at 10 per cent per annum from date until paid and that no part of said note had been paid except the interest up to November 5, 1911. The court also found that the sum of $ 767.72 with 10 per cent interest from September 15, 1913, was due on the deed of trust given to F. B. Hale as trustee for the Osceola Cotton Oil Company and that the deed of trust given to H. J. Hale, as trustee for W. P. Hale, was a first lien upon the homestead and that the deed of trust given to F. B. Hale, as trustee for the Osceola Cotton Oil Company, was a second lien upon the homestead. A decree of foreclosure was entered.

From this decree the defendants have duly prosecuted an appeal to this court.

Decree affirmed in part, reversed in part and cause remanded.

Appellants, pro se.

1. The land in question is a homestead, and to convey it the wife must not only join in the execution of the instrument, but also must acknowledge the same. Kirby's Dig., § 3901; 32 Ark. 453; 60 Ark. 270; 64 Ark. 493; 57 Ark. 242; 84 Ark. 335; 89 Am. St. Rep. 341, note; Devlin on Deeds, 1036, § 548, (b.); Id. 2403, § 1285.

To render a notary public's certificate of acknowledgment valid, he must sign the certificate. Devlin on Deeds, 98, § 496; 11 Am. St. Rep. 143; 100 Am. Dec. 152; 41 Am. Dec. 173; 20 Ohio 119; 17 Id. 542; 26 Texas, 212; 127 Ill. 449; 44 Ark. 421.

2. The trust deed executed to F. B. Hale as trustee for the Osceola Cotton Oil Company is invalid, because the notary who took the acknowledgment of the same was, at the time, an officer and stockholder of that company. 43 Ark. 420; 33 L. R. A. 332, note; Devlin on Deeds, 856, § 477 (c.), 477 (d.); 138 Ga. 258; 44 L. R. A. (N. S.) 377; 75 S.E. 248; 1 Cyc. 555.

J. N. Thomason, for appellees.

1. The certificate of acknowledgment to the deed of trust to H. J. Hale, trustee, is sufficient.

It appears by the deed of trust and other evidence that Hattie Davis did acknowledge it, and if so, she is bound by her act, and the failure of the notary to sign his name would not be a defect of which she and the minor heirs could take advantage. If the acknowledgment was actually taken, as the certificate states, the signing was a ministerial act and could be supplied by the court. 21 Ark. 309; 14 Ark. 675; 36 Cyc. 446.

His failure to sign the certificate was cured by the curative act of 1911. Acts 1911, p. 12.

2. The certificate of acknowledgment to the trust deed executed to F. B. Hale as trustee, is not invalid because of the fact that the notary was an officer and stockholder in the Osceola Cotton Oil Company. 1 Cyc. 553, and cases cited; 20 Okla. 427; 16 Am. & Eng. Ann. cases, 133; 68 O. St. 280, 67 N.E. 729, 62 L. R. A. 790; 32 Wash. 572; 73 P. 680; 97 Tenn. 285; 125 Cal. 320, 57 P. 1070; 36 Fla. 575, 18 So. 850.

OPINION

HART, J., (after stating the facts).

The court should not have given the defendants leave to file a bill of review. To support a bill of review for newly discovered matter, the matter must be such as could not have been discovered by the use of reasonable diligence. Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203, 105 S.W. 77; Jackson v. Becktold Printing & Book Mfg. Co., 97 Ark. 415, 134 S.W. 629; Smith v. Rucker, 95 Ark. 517, 129 S.W. 1079.

The defendants knew, or by the exercise of reasonable diligence could have known, that Hattie Davis had not acknowledged the deed of trust to H. J. Hale as trustee for W. P. Hale before the rendition of the decree by the chancellor in the fall of 1913.

Moreover, that decree was not a final decree and no appeal could have been taken from it. Therefore the defendants could have presented their additional testimony without a bill of review. In the case of Johnson's Ex'r. v. Clark, 4 Ark. 235, the court held that under our statute regulating the practice in chancery courts a party is not entitled to an appeal unless upon a final decision or decree, and that where the decree affirms that the conveyance of certain slaves is a mortgage and that the complainant has a right to redeem under it, and directs the master in chancery to take an account and make a report to the next term of court, these facts clearly show that the decree is merely interlocutory and not final or conclusive between the parties.

In the case of Sennett v. Walker, 92 Ark. 607, 123 S.W. 769, this court quoted with approval from the case of Davie v. Davie, 52 Ark. 224, 12 S.W. 558 as follows: "In this case, while the decree takes the form of a final order in adjudicating the parties' proportionate interests in the land, it is apparent that the court has not fully adjudicated that branch of the cause. The relative interests of the parties in the land have been ascertained and determined, but the cause is retained with a reference to a master who is directed to report at a subsequent term, and the court is yet to determine, upon the coming in of the report, what amounts shall be charged as liens upon the several interests, and whether there shall be a sale of some of the interests to satisfy the same. The decree does not direct its execution, but looks to further judicial action before that event. The plaintiffs can suffer no injury by awaiting the termination of the...

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