Gray v. Law

• Decision Date: 12 May 1899
• Citation: 6 Idaho 559,57 P. 435
• Parties: GRAY v. LAW, ADMINISTRATOR
• Court: Idaho Supreme Court

57 P. 435

6 Idaho 559

GRAY v. LAW, ADMINISTRATOR

Supreme Court of Idaho

May 12, 1899

MORTGAGE-MARRIED WOMAN-ACKNOWLEDGMENT.-Where a certificate of acknowledgment of a married woman is valid on its face, and is attacked on the ground that it is false, the validity of the certificate will be sustained, unless the proof of the falsity is clear and convincing, and establishes the fact beyond a reasonable doubt.

SAME-CERTIFICATE OF PROOF.-Public policy requires a certificate of acknowledgment, if in proper form, to prevail over the unsupported evidence of the grantor, and especially is that true where the grantor admits that she signed the instrument to which such certificate belongs.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Judgment affirmed. Costs of appeal awarded to appellants.

John A Bagley and W. E. Borah, for Appellants.

The evidence of Mrs. Eliza Spence was incompetent and inadmissible to impeach the certificate of acknowledgment. The certificate of acknowledgment was in due and regular form. (Northwestern etc. Bank v. Rauch, 5 Idaho 752 51 P. 764; Bunnell & Eno Inv. Co. v. Curtis, 5 Idaho 652, 51 P. 767; Co-operative Savings etc. Assn. v Green, 5 Idaho 660, 51 P. 770; Christensen v. Holingsworth, ante, pp. 87, 94, 53 P. 211, 271; Curtis v. Bunnell etc. Co., ante, p. 298, 55 P. 659.) A certificate of acknowledgment regular in form can only be impeached upon the ground of fraud, and before parol testimony is admissible for this purpose there must be both an allegation of fraud and clear proof of fraud practiced upon the married woman in which the mortgagee took part or had notice of. (Jones on Mortgages, 500; Devlin on Deeds, 529, 535; Browne on Parol Evidence, 303, 304; Kerr v. Russell, 69 Ill. 666, 18 Am. Rep. 634; 2 Wharton on Evidence, 1052; Johnston v. Wallace, 53 Miss. 331, 24 Am. Rep. 699; Freiberg v. De Lamar, 7 Tex. Civ. App. 263, 27 S.W. 151; Mather v. Jarel, 33 F. 366; Pierre v. Feagons, 39 F. 587; Young v. Duvall, 109 U.S. 573, 3 S.Ct. 414; Hitz v. Jenks, 123 U.S. 297, 8 S.Ct. 143, 57 Cal. 141; De Arnaz v. Escondon, 59 Cal. 486; Banning v. Banning, 80 Cal. 271, 13 Am. St. Rep. 156, 22 P. 210; Wedel v. Herman, 59 Cal. 514.) A regard to the policy of the law for the security of titles and the protection of the rights of property which are passed by conveyances, of which the acknowledgments and certificates are a common part, will restrain this court, from allowing such acknowledgments to be impeached by parol evidence, contradicting the facts certified in the fraud and imposition; and where there are fraud and imposition alleged, the knowledge of it ought to be brought home to the grantee, or such circumstances within his knowledge of the want of free will and consent on the part of the wife as should lead him to inform himself of the reality of a free execution and acknowledgment by the wife whose property was to, be devested. (Devlin on Deeds, 530; De Arnaz v. Escandon, 59 Cal. 486; Cover v. Manaway, 115 Pa. St. 338, 2 Am. St. Rep. 552, 8 A. 393.) The officer's certificate of acknowledgment, if made in proper form, will prevail over the unsupported testimony of the grantor. (Devlin on Deeds, 529; Mutual Ins. Co. v. Corey, 135 N.Y. 326, 31 N.E. 1095; Lickmon v. Harding, 65 Ill. 505.)

Allen Miller, T. L. Glenn and E. E. Chalmers, for Respondents.

A married woman's signature to a deed amounts to nothing in anyone's hands as to her until she has acknowledged the deed before a proper officer after privy examination, and he has certified that all the requirements of the statute have been complied with and the deed has been recorded. She ought to have the same right to impeach the certificate of her appearance before the officer making it, when in fact she did not appear before him, that a man has to prove a deed professing to be signed by him to be a forgery. To the same effect are the following cases: Shelton v. Aultman & Taylor Co., 82 Ala. 315, 8 So. 232; Carr v. Hanley, 22 Fla. 317; Lendly v. Smith, 58 Ill. 250; Fisher v. Meccter, 24 Mich. 447; Smith v. Ward, 2 Root. (Conn.) 378; Chamberlain v. Spangler, 86 N.Y. 603; Dolph v. Barney, 5 Or. 205; Dareis v. Hamblen, 51 Md. 525; Borland v. Valcerath, 33 Iowa 130; Bailey v. Landingham, 53 Iowa 722, 6 N.W. 76; Lenoir v. Allen, 53 Miss. 321; Donahue v. Mills, 41 Ark. 421; Myers v. Gasset, 38 Ark. 377; Williamson v. Clarksden, 36 Ohio St. 664.

SULLIVAN, J., HUSTON, C. J. Huston, C. J., Sullivan, J., concurring. Quarles, J., did not sit at the hearing of this case, and took no part in the decision.

OPINION

SULLIVAN, J.

This suit was brought to foreclose two mortgages, one on real estate and one on personal property, and for the cancellation of a decree of foreclosure and certificate of sheriff's sale thereunder in a suit entitled "Fred. W. Law, as Administrator of the Estate of Hannah B. Humphreys, Deceased against R. S. Spence and Eliza Spence, Husband and Wife." The complaint contains allegations necessary in a foreclosure action, and attacks said decree of foreclosure and certificate of sale on the grounds that the said defendant Eliza Spence "never appeared before the officer purporting to take her acknowledgment thereto"; "that he never made her acquainted with the contents of said pretended mortgage, separate and apart from, and without the hearing of, her husband," as required by the provisions of section 2956 of the Revised Statutes. The defendants, Spence and wife, filed their disclaimer disclaiming any right, title, or interest in and to the real estate described in the complaint, and default was entered against them. The answer of said administrator put in issue the allegations of the complaint touching the validity of the said Humphreys mortgage. The cause was tried by the court without a jury, and judgment and decree entered in favor of plaintiff, Gray, who is the respondent. This appeal is from the judgment. The main contention is that Mrs. Spence, one of the defendants, who has disclaimed any interest whatever in the real estate described in the complaint, and who failed to answer the complaint further than to file such disclaimer, never appeared before the officer whose signature is attached to said certificate of acknowledgment, and that he did not make her acquainted with the contents of said mortgage, separate and apart from, and without the hearing of, her husband. To establish that issue the plaintiff introduced as witness said R. S. Spence and his wife, Eliza Spence. R. S. Spence testified that he drew up the said Humphreys mortgage; that he was a practicing attorney; that said mortgage was prepared and signed by himself and wife, and the certificate of acknowledgment was made by Mr. Mantonya, the acknowledging officer; that, after the mortgage was signed and acknowledged as appears of record, it was then presented to Mrs. Humphreys. He further testifies that he took the mortgage home to his wife, and that she signed it, and that he then brought it back to Mr. Mantonya; that he acknowledged the execution thereof before said Mantonya, and told him that that was his wife's signature, and he certified to it; that said officer did not go to witness' house, to see his wife, at that time, and that his wife did not go before the acknowledging officer before the certificate was made. He testified as follows: "I think I saw him attach his certificate. The mortgage was in my possession from the time my wife signed it until the officer attached his certificate. My wife was at home at that time." On cross-examination he testified that: "Mantonya lived about a stone's throw from us. When Mantonya went home, he went down the street by our house. I don't know whether Mr. Mantonya went and informed my wife of the contents of this instrument, and whether she acknowledged to him that she signed it of her own free will or not, and without my hearing. No, sir; I don't know. Question. And when he certified that he made her acquainted with the contents of this instrument without your hearing, and that she executed this instrument of her own free will and choice, you don't mean to say that that is not true? A No, sir. I don't know. The facts are as I stated them, and that was the common practice in that day." He also testified that the respondent took legal advice as to the validity of the Humphreys mortgage at the time he took the mortgage sought to be foreclosed in this suit. Mrs. Eliza Spence testified on behalf of the plaintiff that she did not appear before Mr. Mantonya, and acknowledge to him that she consented to mortgage her home to Mrs. Humphreys. On cross-examination, she testified as follows: "I signed the mortgage down at my home, at my husband's request. I did it voluntarily. My husband did not coerce or compel me to sign it. Was not compelled by any one to sign it," and, "I was willing to sign it, if my husband wanted it done. It was my free and voluntary act." Mrs. Spence's testimony is to the effect that her acknowledgment was not taken as required by law, while the witness Spence attempts to make it appear that the officer did not take his wife's acknowledgment, but finally testified that he did not know whether the officer took the same or not. We find in the record before us the separate answer of the witness R. S. Spence in the suit of Fred. W. Law, as administrator of the estate of Hannah B. Humphreys, deceased, against R. S. Spence and others, which suit was brought to foreclose the mortgage referred to in the testimony of said Spence, above quoted. Said answer was duly verified by the oath of said witness Spence, in which he admits the due execution and delivery of the mortgage in question by himself and his said wife, Eliza Spence. In his testimony in the case at bar he attempts to set forth what...