Hagan Bros. v. Beaty

• Decision Date: 09 May 1918
• Docket Number: 5 Div. 707
• Parties: HAGAN BROS. et al. v. BEATY.
• Court: Alabama Supreme Court

79 So. 250

201 Ala. 678

HAGAN BROS. et al. v. BEATY.

5 Div. 707

Supreme Court of Alabama

May 9, 1918

On Rehearing, June 6, 1918

Appeal from Circuit Court, Coosa County; A.H. Alston, Judge.

Bill to quiet title by T.J. Beaty against Hagan Bros. and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Geo. A Sorrell, of Alexander City, for appellants.

Felix L. Smith, of Rockford, for appellee.

McCLELLAN J.

The original bill was filed by Beaty, appellee, against the appellants. It sought to quiet the title of the complainant to certain lands in Coosa county, Ala.Code, § 5443 et seq. The defendants (appellants) propounded their claim that they held a mortgage on these lands, executed by complainant and his wife to them. The answer was constituted a cross-bill and foreclosure of the mortgage was prayed. The court awarded the complainant relief by canceling the instrument asserted through the answer, and this, on the ground that the instrument was not efficiently executed, there being no valid acknowledgment given or taken.

The instrument in question purported to mortgage lands lying in Coosa county, Ala. The complainant and his wife resided on this land at the time the instrument is said to have been signed. It was a homestead. It could not be validly subjected to mortgage without the separate acknowledgment by the wife of the execution of the instrument. Code, § 4161. The certificate of acknowledgment on the paper purports to be a memorial by an officer authorized to take acknowledgments viz. a notary public, of an acknowledgment given and taken in Talladega county, Ala. The officer so certifying was authorized to take acknowledgments in Talladega county, Ala but he had no power or authority to take acknowledgments in Coosa county, Ala. It is settled here that an officer authorized to take and certify acknowledgments in one county is without power to take an acknowledgment in another county. "The jurisdiction of an officer, elected and appointed is local. It is confined to the territorial area for which he is commissioned. Within that territorial area, whether large or small, he can perform official functions. Outside of it, he is a private person, having no official power or jurisdiction. An act done by him beyond the boundaries of his local jurisdiction, no matter how formal he may make it appear, is sheer usurpation, having no official validity." Edinburg Mortgage Co. v. Peoples, 102 Ala. 241, 244, 14 So. 656; New England Mortgage Co. v. Payne, 107 Ala. 578, 18 So. 164; Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843; Chatt., etc., Ass'n v. Vaught, 143 Ala. 389, 39 So. 215; Thompson v. Mortgage Co., 110 Ala. 400, 407, 408, 18 So. 315, 55 Am.St.Rep. 29; American Mortgage Co. v. King, 105 Ala. 358, 360, 16 So. 889. If the acknowledgment certified as having been given and taken in Talladega county was not there given and taken, but was, in fact, undertaken to be effected in Coosa county by the officer only authorized to take acknowledgments in Talladega county, there was no valid acknowledgment taken, the notary public, purporting to certify that a regular acknowledgment was given and taken, being without jurisdiction or power to take an acknowledgment in Coosa county. The issue was one of fact, and parol evidence was admissible to show the entire absence of jurisdiction on the part of the notary public to take the purported acknowledgment in Coosa county. Butler v. Hill, 190 Ala. 576, 67 So. 260, and decisions therein cited. The court below decided this issue of fact in favor of the complainant. A careful review and consideration of the whole evidence confirms the...