Heeter v. Glasgow

• Decision Date: 31 May 1875
• Citation: 79 Pa. 79
• Court: Pennsylvania Supreme Court
• Parties: Heeter <I>et al. versus</I> Glasgow.

Page 79

79 Pa. 79

Heeter et al. versus Glasgow.

Supreme Court of Pennsylvania.

May 21, 1875.

May 31, 1875.

May 21st 1875.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Huntingdon county: Of May Term 1875, No. 60.

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R. M. Speer and R. B. Petriken (with whom was W. H. Woods), for plaintiffs in error.—The evidence as to the acknowledgment of the mortgage should have been submitted to the jury: McCandless v. Engle, 1 P. F. Smith 312. The acknowledgment was in legal form: Act 11th of April 1856, sect. 1, Pamph. L. 315, 1 Br. Purdon 475, pl. 90; Miner v. Graham, 12 Harris 491; Haffey v. Carey, 23 P. F. Smith 431; Shinn v. Holmes, 1 Casey 142. In taking an acknowledgment, a justice acts judicially, and his certificate that the required forms have been observed, in the absence of fraud or collusion, is entitled to full faith and credit: Jamison v. Jamison, 3 Wharton 469; Loudon v. Blythe, 4 Harris 541; Watson v. Bailey, 1 Binn. 470; Graham v. Anderson, 42 Ill. 514; Hill v. Bacon, 43 Id. 477. Knowledge of the fraud or duress ought to be brought home to the grantee, or at least knowledge of such circumstances as would put him on inquiry: Michener and Wife v. Cavender, 2 Wright 337; McCandless v. Engle, 1 P. F. Smith 313; Hall v. Patterson, Id. 289. If it appears from the whole certificate that the contents of the deed were known to the wife, it is as effectual as if the magistrate had certified that he read or otherwise made them known to her. If she knew, it is not material that the justice communicated the knowledge: McIntire v. Ward, 5 Binn. 296; Shaller v. Brand, 6 Id. 435, 438; Jamison v. Jamison, 3 Wharton 469; Barnet v. Barnet, 15 S. & R. 73; Battin v. Bigelow, Peters C. C. 453; Jones v. Maffet, 5 S. & R. 534; Talbot v. Simpson, Peters C. C. 188.

J. Scott (with whom were S. J. Brown and J. M. Bailey), for defendant in error, cited Keen v. Coleman, 3 Wright 299; Glidden v. Strupler, 2 P. F. Smith 400; Moore v. Cornell, 18 Id. 320.

Mr. Justice PAXSON delivered the opinion of the court, May 31st 1875.

The parol evidence offered to impeach the magistrate's certificate appears to have been received without objection. The learned judge of the court below, however, fell into error when he assumed that it was conclusive, and withdrew the question of fact from the jury. Opposed to the parol evidence was the official certificate of the magistrate, showing upon its face that Mrs. Glasgow had executed and acknowledged the mortgage in the manner required by law. No matter what the magistrate may have sworn to upon the trial, the plaintiffs were entitled to have his official act go to the jury.

The certificate of a justice of the peace of the acknowledgment of a deed or mortgage is a judicial act. It is conclusive of the facts certified to in the absence of fraud or duress. This is the current of all the authorities in this state: Jamison v. Jamison, 3 Wharton 457; Hall v. Patterson, 1 P. F. Smith 289; McCandless v. Engle, Id. 309. In the case first cited, it was held that parol evidence of what passed at the time of the acknowledgment was not admissible for the purpose of contradicting the certificate, except in cases of fraud and imposition. In a number of cases parol evidence has been freely admitted to overthrow the certificate, as in Michener v. Cavender, 2 Wright 337; Louden v. Blythe, 4 Harris 541; and Schrader v. Decker, 9 Barr 14. But in all these cases gross fraud and imposition had been practised, affecting the acknowledgment itself. There is another class of cases in which parol evidence has been...