Gates v. Hester

• Decision Date: 24 February 1887
• Parties: GATES v. HESTER.
• Court: Alabama Supreme Court

1 So. 848

81 Ala. 357

GATES v. HESTER.

Supreme Court of Alabama

February 24, 1887

Appeal from circuit court, Franklin county.

Statutory real action in the nature of ejectment.

This action was commenced December 9, 1885, and is brought to recover certain lands described in the complaint. On the trial of the cause, as the judgment entry shows, "the plaintiff offered as evidence in this case a mortgage purporting to be executed by the defendant and his wife, to which defendant objected, because the land sought to be conveyed, here sued for, was the homestead of defendant, and defendant, at the time of the execution of said mortgage, was a married man, and the acknowledgment of the wife to the conveyanceor mortgage was not as by statute prescribed. And plaintiff having admitted that the defendant was a married man, and that the land sued for was the homestead of defendant, and was, at the time of the conveyance, occupied by defendant as a homestead, it is ordered that the objection by defendant [to the introduction of said mortgage in evidence] be, and the same is hereby, sustained, and plaintiff takes a nonsuit," etc. The only question in this case is whether the certificate of the justice, as to the acknowledgment of the wife, was a substantial compliance with the statute.

G. C Alman and Watts & Son, for appellant.

James W. Bolton, for respondent.

CLOPTON J.

The certificate of acknowledgment attached to the mortgage, under which appellant derives title to the land for which he sues recites " that Amanda Hester, wife of R. B. Hester, whose name is signed to the foregoing mortgage, and who is known to me, acknowledged before me, on this day, after being examined separate and apart from her said husband, that she executed the same voluntarily, without any fear, threats, or compulsion of her said husband, and for the purpose therein expressed. " Such certificates should and always have received a liberal construction by this court. Literal compliance with the statutory forms is not exacted. To avoid making the security and validity of titles dependent on strict phraseology, the settled rule of construction in respect to such certificates is that a substantial compliance is sufficient. While, in order that there may be substantial compliance, words must be used of equivalent import and meaning with those employed to express the legislative intent, nice shades and distinctions of signification and mere verbal criticisms should not be observed nor regarded.

In prescribing a form of certificate, the purpose is to procure satisfactory and permanent evidence of the voluntary signature and assent of the wife, in conformity with the constitutional mandate, that a mortgage or other alienation of a homestead by the owner, if a married man, shall not be valid without such signature and assent. To this end a form is provided, the substantive requisites of which are that the person who comes before the officer to be examined is known or made known to him to be the wife of the grantor; that she was examined separate and apart from her husband touching...