Edinburgh American Land Mortg. Co. v. Peoples

• Decision Date: 16 January 1894
• Citation: 14 So. 656,102 Ala. 241
• Parties: EDINBURGH AMERICAN LAND MORTG. CO., LIMITED, v. PEOPLES ET AL.
• Court: Alabama Supreme Court

14 So. 656

102 Ala. 241

EDINBURGH AMERICAN LAND MORTG. CO., LIMITED, v. PEOPLES ET AL.

Supreme Court of Alabama

January 16, 1894

Appeal from chancery court, Geneva county; Jere N. Williams Chancellor.

Bill by the Edinburgh American Land Mortgage Company, Limited against John W. Peoples and others, to foreclose a mortgage. Cross bill to set aside the mortgage. From a judgment dismissing the bill, and setting aside the mortgage complainant appeals. Modified.

The mortgage sought to be foreclosed by the bill was one executed by John W. Peoples and his wife, Martha A. Peoples, and was given to secure a loan of money made by the complainant to the said John W. Peoples. The land contained in the mortgage was the homestead of the mortgagor, contained 160 acres, and was worth less than $2,000. The defendants answered the bill alleging the fact that the mortgage was null and void as a conveyance of the homestead in that the officer before whom the acknowledgment of the wife was made was an officer of Henry county, while the acknowledgment was taken and made in Geneva county; and the defendants prayed that their bill be taken as a cross bill, and that the mortgage be declared null and void, and the notes canceled.

M. E. Milligan, for appellant.

T. M. Espy, for appellees.

STONE C.J.

The present litigation originated in a bill filed by the appellant to foreclose a mortgage having the signatures of John W. Peoples and Martha A. Peoples, his wife. Other persons were made parties defendant, on the allegation that they, too, claimed to be mortgagees, or asserted some interest in, or lien on, the land which the appellant sought to have sold in the foreclosure proceedings; and two cross bills were filed, each of which prayed relief antagonistic to that claimed by appellant. There was a decree on all the issues presented, denying all relief to complainant in the original suit, but granting some relief under the cross bills. From that decree the Land Mortgage Company alone appealed to this court, and alone assigns as error that "the court below erred in rendering the final decree in said cause." We will consider the questions presented only to the extent the decree affects the interests of the Edinburgh American Land Mortgage Company, Limited.

The real estate described, and claimed to have been conveyed, in the mortgage, is situated in Geneva county, and contains 160 acres,-neither more nor less. It is clearly proved, and nowhere denied, that, at the time the mortgage was executed,-May 26, 1891,-Peoples resided on the lands as his home, that he was a married man, and that the tract was worth less than $2,000. The certificates of acknowledgment of the execution of the mortgage declare on their face that each of them was made in Henry county, and before a notary public and ex officio justice of the peace of that county. This was, and is, the only certificate of acknowledgment of the execution of the mortgage, either by John W. Peoples or Martha A Peoples, his wife. The certificate of acknowledgment is in the exact form prescribed by the statute for the execution of the conveyance of a homestead by husband and wife. Code 1886, § 2508, and form. The language employed is above criticism. The proof is full and uncontradicted that the acknowledgment was taken and certified at the home of Peoples, in Geneva county, the justice of the peace of Henry county going into Geneva county for that purpose. It is contended for appellant that, the certificate being in statutory form, and by an officer having authority to take such acknowledgment,-in other words, being free from imperfection on its face,-testimony will not be received to contradict the recital that Mrs. Peoples, being examined separate and apart from her husband, appeared before the officer, was known, or made known, to him, and "acknowledged that she signed the same of her own free will and accord, and without fear, constraint, or threats on the part of the husband." This is certainly the general rule, and, to a certain extent, is unquestionably sound. Miller v. Marx, 55 Ala. 322; Moses v. Dade, 58 Ala. 211; Rogers v. Adams, 66 Ala. 600; Moog v. Strang, 69 Ala. 98; Vancleave v. Wilson, 73 Ala. 387; Downing v. Blair, 75 Ala. 216; Dent v. Long, 90 Ala. 172, 7 So. 640; Shelton v. Aultman & Taylor Co., 82 Ala. 315, 8 So. 232. It is equally well settled that when there is no certificate of such acknowledgment by the wife, or there is a substantial defect in the acknowledgment, or, rather, in the...