Griffith v. Ventress

• Decision Date: 06 November 1890
• Citation: 8 So. 312,91 Ala. 366
• Parties: GRIFFITH v. VENTRESS.
• Court: Alabama Supreme Court

8 So. 312

91 Ala. 366

GRIFFITH v. VENTRESS.

Supreme Court of Alabama

November 6, 1890

Appeal from chancery court, Barbour county; JOHN A. FOSTER, Judge.

Jere Williams, for appellant.

Roquemore, White & McKenzie and Geo. W Peach, for appellee.

COLEMAN J.

The record contains the following statement of facts: On and prior to the 12th day of January, 1879, Thomas Ventress was possessed of and owned in fee certain lands described in the pleadings, and on that day sold the same to Junius Griffith and Jere Griffith, put the vendees in possession, and executed his bond to make them valid titles upon the payment of the expressed consideration. The entire purchase money was paid, but Thomas Ventress died without executing a deed of conveyance, as provided for in his bond for titles. Prior to the death of Thomas Ventress, but after he had received the entire purchase money, one of his vendees, on the 31st of January, 1885, executed a mortgage to the said Thomas Ventress on his entire half interest in the lands, to secure the payment of a new indebtedness for the sum of $619.60. Both Junius Griffith and Jere Griffith were married, and with their wives, respectively, occupied the lands purchased, but separate parts, as their respective homesteads. The lands are situated in the county, comprise in toto 365 acres, and are of less value than $2,000. James C. Ventress, the appellee, qualified as the administrator of Thomas Ventress, and, as such administrator, brought suit in ejectment, and recovered the entire lands, and damages for the detention thereof, by virtue of the legal title of his intestate, and from which he had never parted, and not upon the title conveyed to him by the mortgage. After his purchase, Jere Griffith died, and left, surviving him, Isham Griffith and Sarah Noble. Thomas Ventress left several adult heirs, and also Ellen J. Taylor, a minor over 14 years of age, and John Taylor, Mary L. Taylor, and other minors under 14 years of age. All the minors are nonresidents. The wife of Junius Griffith signed the mortgage with her husband. The acknowledgment was taken before A. H. ALSTON, probate judge of Barbour county, on the day of the date of the mortgage, to-wit, 31st January, 1885. This certificate of the acknowledgment by the wife is defective, and insufficient to make the mortgage valid as to the homestead. After the filing of this bill,-to-wit, on the 20th of August, 1889,-the probate judge makes and adds a new certificate to the mortgage, complying in all respects with the law as to conveyances of the homestead. It does not appear that Junius Griffith, or his wife, knew of or consented to the additional certificate. The object of the present bill is to divest the legal title out of the heirs of Thomas Ventress, and invest the same in the complainants, and to have the mortgage declared null and void, because the certificate of the acknowledgment by the wife of Junius Griffith was fatally defective. It has been often decided by this court that parties in whom the legal title is vested must be in court, before a decree can be properly rendered divesting them of their title. In all cases where minors are interested as material defendants, they must be represented by a guardian ad litem properly appointed. Hibbler v. Sprowl, 71 Ala. 50. A decree pro confesso against minor defendants, not represented by a guardian ad litem, is wholly irregular, and, in cases where the legal title is vested in them, it is the duty of this court to reverse the case and remand the cause that they may be properly made parties, and their interest protected. The record shows a decree pro confesso against Ellen J. Taylor, John Taylor, and other minor defendants, and it fails to show that they have at any time been represented by a guardian ad litem. James C. Ventress, individually, and as the administrator of Thomas Ventress, answered the bill, and by cross-bill sought a foreclosure of the mortgage.

The difficult question in the case, however, is as to the legality of the new certificate made by the probate judge to the mortgage on the 20th of August, 1889, over four years after the first certificate, and after the expiration of the term of office held by him, when he made the first certificate, although he had been re-elected, and was occupying the same official position when he made the second certificate. The question has never been directly before this court, and the authorities are not in harmony. In the case of Cox v. Holcomb, 87 Ala. 591, 6 South. Rep. 309, it is stated: "While no case has been heretofore presented in which the wife was in fact examined separate and apart from her husband, touching her signature to an alienation of the homestead, and made the statutory acknowledgment of her voluntary signature and assent, and the officer before whom the acknowledgment was made omitted to certify in substantial compliance with the statute, the principles which underlie the case, and are decisive of the question involved, should be regarded as well settled. An alienation of the homestead by a married woman, not executed by the wife in the manner prescribed by the statute, has been uniformly held to be a nullity. The constitution and statute have reference to same mode of alienation by which the title passes in præsenti. " It has been uniformly held that courts of equity, in the absence of statutory authority, cannot relieve against the defective execution or a power created by statute, nor supply any of the formalities requisite to its due execution. To sustain the authority of the probate judge to add his last certificate, and thereby render the mortgage valid, we have been referred to a statement of the court made in the case of Carlisle v. Carlisle, 78 Ala. 544, and of Cox v. Holcomb, just cited. It will be seen from the extract quoted from the latter case that the court stated that the precise question had never arisen in this state. In the case of Carlisle v. Carlisle, the justice of the peace, before whom the acknowledgment was made, failed to sign the certificate. It was not contended that the certificate was sufficient, or that the justice of the peace could then affix his signature so as to make the certificate valid. In the body of the certificate the name of the justice appeared, and the attempt was made to show that his name was written by the justice himself, and thus to bring the certificate within the principle laid down in Sharpe v. Orme, 61 Ala. 263, and Rogers v. Adams, 66 Ala. 600, where it was held that "a defective certificate of acknowledgment may, from necessity, operate as a substitute for the formal attestation of a witness." In the case of Carlisle v. Carlisle, cited, the justice had ceased to be a justice, and had removed from the county in which he held the office of justice of the peace. At the conclusion of the opinion, the court stated: "The officer who filled the blanks in the printed form on the deed has ceased to be such officer, and is unauthorized to make a certificate as justice of the peace in Pike county to have effect, by relation, as if done at the time he was acting as such officer." No authority is cited, and the question now under consideration was not involved in that case, and not determined. At the close of the opinion in the case of Cox v. Holcomb, 87 Ala. 592, 6 South. Rep. 309, the court says: "The officer taking the acknowledgment may, during his continuance in office, voluntarily correct his certificate or make a new one conforming to the statute if the facts warrant; but a court of equity will not assume to correct or aid the defective execution of such statutory powers." The case of Wannall v. Kem, 51 Mo. 150, is referred to as sustaining this proposition. Whether an officer taking the acknowledgment may, during his continuance in office, voluntarily correct his certificate, was not a question in the case, and the statement must be regarded in the nature of a dictum of the court. If, however, the principle is correct, and sustained by authority, and is applicable, it is decisive of the question under consideration. By referring to the case of Wannall v. Kem, 51 Mo. 150, quoted, it will be seen that the court uses the precise language used by this court in the case of Cox v. Holcomb, and just quoted. By examination, it will be seen the precise question was not before the court in the case of Wannall v. Kem, supra. The bill was filed to foreclose a mortgage given by Kem and wife upon lands belonging to the wife. The bill admitted the insufficiency of the certificate of the notary public, made him a party defendant, and sought to have the certificate amended by the decree of the court. It was held that a court of equity had no jurisdiction to correct the mistake, and the bill was dismissed. In the opinion rendered it was stated: "The officer may voluntarily correct his certificate, when he has given a defective one, if the facts really exist to warrant such action." Several authorities are referred to in this opinion, but a careful examination shows that none of them sustain the court in its dictum. The authorities there cited are on the point that a court of equity has no jurisdiction to correct such mistakes. Acting on the suggestion made by ...