Dowell v. Mitchell

• Decision Date: 18 March 1884
• Citation: 82 Ky. 47
• Parties: Dowell v. Mitchell.
• Court: Kentucky Court of Appeals

82 Ky. 47

Dowell v. Mitchell.

Court of Appeals of Kentucky.

March 18, 1884.

APPEAL FROM GREEN CIRCUIT COURT.

A. DUVALL, FOR APPELLANT.

E. W. HINES, FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

Appellee brought this action against appellant on a note secured by mortgage and signed by appellant and her deceased husband. The defense set up is: First, that she was compelled to sign the note and to execute the mortgage by the duress of her deceased husband; second, that she did not acknowledge the mortgage separate and apart from her husband, and that neither the contents nor the effects of the mortgage were explained to her, or understood by her. There is no charge of fraud on the part of appellee nor of mistake by the deputy clerk taking the acknowledgment, nor is there any pretense that appellee knew any of these things. Notwithstanding the failure to allege either of these things, the court improperly admitted evidence tending to show some threats made by the husband prior to the acknowledgment of the mortgage, that he was present at the time of acknowledgment, and also tended to show doubt upon the question as to whether the mortgage was explained to her, but there is no doubt, from the evidence, that she understood the contents of the mortgage. In the absence of any allegation as to fraud or mistake, as indicated, the evidence is immaterial, since the mortgage was acknowledged subsequent to the adoption of the General Statutes. Section 17, chap-81, of that Revision reads:

"Unless in a direct proceeding against himself or his sureties, no fact officially stated by an officer in respect of a matter about which he is by law required to make a statement, in writing, either in the form of a certificate, return, or otherwise, shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer."

Section 38 of chapter 24 provides that a memorandum of an acknowledgment, endorsed upon an instrument by a deputy clerk, may afterward be written out in full by the clerk, including in his certificate the memorandum by the deputy. That, in this instance, was done, and the following is the full certificate of the clerk

                "STATE OF KENTUCKY, |
                                     > Sct
                    "GREEN COUNTY.  |
                

"I, J. S. Dunham, Clerk of the County Court for the County and State aforesaid, certify that the foregoing mortgage from T. W. Dowell and his wife, Sarah Dowell, to James Mitchell was, on the 7th day of August, 1876, in Green county, before W. T. Smith, a...