First National Bank of Hailey v. Glenn

• Citation: 77 P. 623,10 Idaho 224
• Parties: FIRST NATIONAL BANK OF HAILEY v. GLENN
• Decision Date: 22 June 1904
• Court: United States State Supreme Court of Idaho

77 P. 623

10 Idaho 224

FIRST NATIONAL BANK OF HAILEY v. GLENN

Supreme Court of Idaho

June 22, 1904

MORTGAGE-ACKNOWLEDGMENT BY MARRIED WOMEN-EVIDENCE OF NOTARY-SIGNATURE BY MARK-WITNESS TO SIGNATURE BY MARK-ADOPTION OF SIGNATURE-USURY-AGREEMENT TO PAY TAX ON LOAN-VOID CONTRACT-CLAIM AGAINST ESTATE OF DECEASED-ALLOWANCE OF MORTGAGE INDEBTEDNESS-MORTGAGEE MAY FORECLOSE.

1. Where a notary explains to a married woman that the instrument to which her name is appended is a mortgage upon certain real estate, and the nature and contents thereof, and the property encumbered thereby, and she thereupon replies that whatever her husband does or says is all right with her and that he is a good man and she has confidence in him, and will do whatever he does, held, that such facts constitute a sufficient acknowledgment and justify the notary in attaching his certificate of acknowledgment in due form to such instrument.

2. Where a married woman acknowledges an instrument in due form and at the time of such acknowledgment her name is affixed to such instrument as follows:

her

"Jennie X Glenn,"

mark

but her signature by mark is not witnessed by any person writing his name as a witness thereto, held, that by such acknowledgment she adopted and approved the signature as her own and thereby acknowledged the execution of the same as her act; and the officer's certificate of her acknowledgment attached thereto is a sufficient witnessing of her signature by mark and constitutes a compliance with section 16, Revised Statutes, which provides that "Signature or subscription includes mark, when the person cannot write, his name being written near it, and witnessed by a person who writes his own name as a witness."

3. An officer cannot lawfully take the acknowledgment to an instrument of a person whose name is not at the time affixed to the instrument, and does not appear thereon.

4. Under section 2960, Revised Statutes, an acknowledgment to the execution of an instrument carries with it an adoption of the signature thereto, and recognition of the same as the name and signature of the person making such acknowledgment.

5. A notary who has taken the acknowledgment to a mortgage should not be allowed to give testimony upon the foreclosure thereof impeaching, or tending to impeach, his certificate of acknowledgment.

6. The certificate of acknowledgment to an instrument made by the officer constitutes his official statement and declaration made at the time of the act as to the truth and accuracy thereof, and is more likely to be true and correct than the memory of such person in years afterward.

7. Where a mortgage provided that a debt should draw interest at the highest legal rate permissible at the time of the execution thereof, and in addition thereto provided that the debtor should pay the taxes on the mortgage and debt secured thereby, held, that such stipulation for the payment of taxes on the loan did not taint the contract with usury; since section 1425, Revised Statutes, provided that "Every contract by which a debtor agrees to pay any tax or assessment on money loaned, or any mortgage, deed of trust or other lien, shall as to such tax or assessment, be null and void."

8. An action may be maintained in the district court for the foreclosure of a mortgage upon real estate where the mortgagor is deceased, although the debt secured by the mortgage has been presented as a claim to the administrator and allowed by him and also by the probate judge of the county, where the only object of the action is to make the debt out of the mortgaged property, and the creditor waives all recourse against any other property of the estate of the deceased.

9. Section 5470, Revised Statutes, which provides that "No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint," does not constitute any bar to the foreclosure of a mortgage by the holder thereof against the estate of a deceased person although the claim thereby secured has been duly and regularly presented to the administrator for allowance.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District. Honorable Kirtland I. Perky, Judge.

The First National Bank of Hailey, as assignee and owner and holder of the mortgage against the estate of G. P. Glenn deceased, and others, commenced its action for the foreclosure thereof. Judgment was entered for the defendants and from such judgment and an order denying a motion for a new trial, plaintiff appeals. Judgment reversed.

Reversed and remanded with directions. Costs awarded to appellant.

R. F. Buller, for Appellant.

The notary's certificate of acknowledgment cannot be impeached by his own evidence. (Shapleigh v. Hull, 21 Colo. 419, 41 P. 1108; Northwestern etc. Bank v. Rauch, 5 Idaho 752, 57 P. 766.) This evidence was also inadmissible, for the further reason that there was no allegation of fraud, accident or mistake in taking and certifying the acknowledgment of the mortgage. In the absence of fraud, accident or mistake, the certificate of the notary in due form is conclusive of the material facts therein stated. (Banning v. Banning, 80 Cal. 271, 13 Am. St. Rep. 156, 22 P. 210; Grant v. White, 57 Cal. 141; Baldwin v. Snowden, 11 Ohio St. 203, 78 Am. Dec. 303; Jones on Mortgages, 538.) Public policy requires that the certificate should prevail over the unsupported testimony of an interested party, otherwise there would be no permanency and but slight security in titles to lands. (Gray v. Law, 6 Idaho 559, 96 Am. St. Rep. 280, 57 P. 435; Russel v. Baptist Theological Soc., 73 Ill. 337.) In Clough v. Clough, 73 Me. 487, 40 Am. Rep. 386, where the grantor's name was written by the grantee and the grantor subsequently acknowledged the deed, the court said: "If one acknowledges and delivers a deed which has his name and seal affixed to it, the deed is valid, no matter by whom the name and seal were affixed. The acknowledgment and delivery are acts of recognition so distinct and emphatic that they will preclude the grantor from afterward denying that the signing and sealing were his acts. They are his by adoption." (9 Am. & Eng. Ency. of Law, p. 145, and cases cited.) At the time this mortgage was made mortgages were taxable in Idaho and the same revenue law which made them taxable also contained section 1425, which says: "Any agreement made by a mortgagor to pay the taxes assessed upon the mortgage shall be void." The law of usury is in its nature penal, and is therefore to be strictly construed. Reason and justice dictate that the forfeiture imposed by it ought not to be visited upon those who are innocent of any intention of violating its provisions. (Dickerson v. Day, 31 Iowa 444.) In Balfour v. Davis, 14 Or. 47, 12 P. 89, it is said that in order to constitute usury there must be a corrupt intent to take more than the legal rate of interest for the use of the money loaned. We submit that there was no corrupt intent, nor any intent whatever, not even a contract; nothing but a void clause in the mortgage, inserted, for aught that appears by the mortgagors themselves, without even the knowledge or consent of the mortgagee. Where the holder of the mortgage does not present his claim against the estate, his recourse is limited to the mortgaged property. (McGahey v. Forest, 109 Cal. 63, 41 P. 817.) If a mortgage is executed by husband and wife upon a homestead which is afterward set apart to the surviving spouse, the mortgagee can neither maintain his action to foreclose nor have a personal judgment against the survivor unless he first presents his claim against the estate of the deceased spouse. (Hibernia Sav. etc. Soc. v. Thornton, 109 Cal. 427, 50 Am. St. Rep. 52, 42 P. 447; Bull v. Cole, 77 Cal. 54, 11 Am. St. Rep. 235, 18 P. 808.) If the administrator improperly pays out money of the estate to remove an encumbrance, he does so at his own risk, and if any loss accrues he must bear it. (In Matter of Estate of Knight, 12 Cal. 200, 73 Am. Dec. 531; In re Huelsman's Estate, 127 Cal. 275, 59 P. 776.)

W. C. Howie, for Respondent.

It is alleged by both plaintiff and defendant, and proven in the evidence, that G. P. Glenn and Jennie Glenn were husband and wife, and is conceded that they were living on the land as a home. Then under section 2921, Statutes of 1887, the land could not be conveyed or encumbered unless both husband and wife joined in the execution of the instrument. Execution includes signing, sealing and delivering. (1 Bouvier's Law Dictionary, 714; 11 Am. & Eng. Ency. of Law, 2d ed., 584; Pico v. Carillo et al., 7 Cal. 30; In re Will of Bridget Guilfoyle, 96 Cal. 598, 31 P. 553, 22 L. R. A 370; Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1.) Courts universally hold in the matter of acknowledgments, if the certificate is wholly false and the supposed grantor has done nothing active herself to hold out to the world that it is genuine by which she can be bound by estoppel, the certificate is the same as forged and the instrument void in the hands of everybody. (Le Mesnager v. Hamilton, 101 Cal. 532, 40 Am. St. Rep. 81, 35 P. 1054; Phillips v. Bishop, 31 Neb. 853, 48 N.W. 1106; Harrison v. Oakman, 56 Mich. 390, 23 N.W. 164.) In Vermont Loan etc. Co. v. Hoffman, 5 Idaho 376, 95 Am. St. Rep. 86, 49 P. 414, 37 L. R. A. 509, where the rate of interest charged was but six per cent when the statute permitted eighteen per cent, and the only thing was that the coupons should...